国际私法中最密切联系原则
发布时间：2018-10-18 06:56
【摘要】：最密切联系原则的创立并非是一蹴而就,而是经历了一个萌芽、产生、发展、完善的过程。其产生具有政治与经济、价值取向、法哲学背景等原因,司法实践中的具体应用始于20世纪中期的美国。最密切联系原则的主要优点有变通性、灵活性,其强调法律适用的统一性,追求结果的公正性,但其又存在理论构建不完整、缺乏操作性等弊端,带有自由裁量权滥用之风险。以对法官自由裁量权的限制程度为标准,最密切联系原则的适用可以分为美国模式、欧洲大陆国家模式、海牙公约模式。最密切联系原则目前实质上已经成为我国涉外民事关系法律适用中的基本原则,其在我国冲突法领域发挥了兜底补充功能、替补功能、修正功能、直接解决功能。除了最密切联系原则本身存在的缺陷,在我国独特的社会和法制环境中,该原则的适用也存在不少问题,其适用带有任意性和随意性,法官整体素质与监督体系的不足也影响其正确适用。
[Abstract]:The principle of closest connection was not established overnight, but experienced a process of sprout, emergence, development and perfection. It has political and economic, value orientation, legal philosophy background and other reasons. The concrete application of judicial practice began in the middle of the 20th century in the United States. The main advantages of the most closely related principle are flexibility and flexibility, which emphasize the unity of the application of the law and pursue the fairness of the result. However, it also has some drawbacks, such as incomplete theoretical construction and lack of operability, with the risk of abuse of discretion. The application of the closest relation principle can be divided into the American model, the continental European model and the Hague convention model. At present, the principle of closest connection has become the basic principle in the application of civil relations concerning foreign affairs in our country, and it has played the role of supplementary function, substitute function, correction function and direct solution function in the field of conflict law in our country. In addition to the shortcomings of the principle of the closest link itself, in the unique social and legal environment of our country, there are also many problems with the application of the principle, which is arbitrary and arbitrary. The deficiency of the judge's overall quality and supervision system also affects its correct application.
【学位授予单位】：苏州大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D997
本文编号：2278340
[Abstract]:The principle of closest connection was not established overnight, but experienced a process of sprout, emergence, development and perfection. It has political and economic, value orientation, legal philosophy background and other reasons. The concrete application of judicial practice began in the middle of the 20th century in the United States. The main advantages of the most closely related principle are flexibility and flexibility, which emphasize the unity of the application of the law and pursue the fairness of the result. However, it also has some drawbacks, such as incomplete theoretical construction and lack of operability, with the risk of abuse of discretion. The application of the closest relation principle can be divided into the American model, the continental European model and the Hague convention model. At present, the principle of closest connection has become the basic principle in the application of civil relations concerning foreign affairs in our country, and it has played the role of supplementary function, substitute function, correction function and direct solution function in the field of conflict law in our country. In addition to the shortcomings of the principle of the closest link itself, in the unique social and legal environment of our country, there are also many problems with the application of the principle, which is arbitrary and arbitrary. The deficiency of the judge's overall quality and supervision system also affects its correct application.
【学位授予单位】：苏州大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D997
【参考文献】
相关期刊论文 前1条
1 王楠;;论最密切联系原则在我国司法实践中的不足与完善[J];法制博览;2015年15期
，本文编号：2278340
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