论最密切联系原则在中国的适用：比较法视角

发布时间：2020-03-24 19:16

【摘要】：The Title of this dissertation is "The Application of'Most Significant Relationship'in the Chinese Judicial System:A Comparative Law Perspective". In recent years, the doctrine of most significant relationship has received more attention. This doctrine emerged with the eruption of the "conflict revolution", which brought new approaches and methodology to the area of private international law or conflict of laws. Europe and other countries, including China, also adopted it or similar theories in their legislations and judicial system, after the United States had adopted this doctrine or most significant relationship. However, the role of this doctrine remains vague and ambiguous in the Chinese judicial system, and its application presents considerable shortcomings and problems. Thus, I will complete a comparative analysis of the application of most significant relationship, with references to its application in other jurisdictions, such as the United States, Europe, and other countries. In this dissertation, I suggest that the Chinese application of most significant relationship will resemble the style adopted in Europe. It is very difficult for China to completely follow the model of the United States, as both China and the United States belong to different legal families. However, Chinese law can still incorporate some advantages from American conflict of laws theories and practice. The application of the most significant relationship in Chinese law has problems because of the absence of judicial reasoning, the lack of explicit and widely accepted principles and approaches, the lack of legal knowledge and experience in making judicial decisions in a flexible way according to general principle, as well as the lack of references and precedents. Therefore, in this dissertation, I also suggest different measures China can take in responding to these problems with the cooperation of the judicial departments, legislature, and scholars. In this dissertation, I also refer to several judicial and arbitration cases in order to illustrate how the doctrine of the most significant relationship can be applied in China. Through the analysis of specific cases, I analyze the shortcomings of judgments and the methodology underlying those judgments. This dissertation is divided into four chapters. The first chapter consists of the introduction of this dissertation, the structure of whole dissertation, and a brief overview of the historical development of conflict of laws theories. The second chapter introduces the emergence of the most significant relationship, the application of this doctrine in the United States, Europe and other countries, and in China. This dissertation also makes a comparison between styles of application of this doctrine within those jurisdictions. The third chapter presents cases judged by courts or arbitration committees and provides analyses for of the cases. The fourth chapter summarizes the observations of three preceding chapters and offers final conclusions of this dissertation, including suggesting some measures to tackle those problems encountered in the application of the doctrine.
【学位授予单位】：南京大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D997

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