Choice Of Law

Methods of the choice of laws are the core of international private law. In order to solve this problem, scholars from different times and countries put forward various theories and doctrines. It is proved that the best way of the choice of laws will be found only if various factors are considered in the choice of laws, because nobody will succeed if he tries to find a certain method of the choice of laws with which all problems will be settled. So we must make a detailed study of methods of the choice of laws. This doctoral dissertation is divided into five chapters, of which the methods of the choice of laws are taken as the main object of study. It begins with the development of private international law and the transformation of value in different times and countries, and ends up with the suggestion of the application of law when dealing with civil relationship with foreign elements in China. Firstly, in the first chapter, the author expounds the pursuit of value in the choice of laws from the point of view of legal philosophy. As rules for correct conduct for people, law should be made for the pursuit of justice. It is the same with private international law, a branch law which regulates civil and commercial relationships with foreign elements. Looking far and wide from the development of private international law, we can find that the pursuit of justice plays a very important role. It is this clue that penetrates the course, from the consideration of only one connecting factor to the consideration of pluralistic benefits, and from the distribution of jurisdiction to the consideration of impartial results. So, the study of how to apply laws must begin with the pursuit of justice. In one word, the author holds that the most important question is not the change from inflexible rules to uncertainty, but the balance between justice in form and justice in substance. Secondly, from chapter 2 to chapter 4, the author makes a detailed study of various methods of the choice of laws, which are divided into two groups: one is the doctrinarism method, such as Savigny's sitz des kechtsverhaltniss. It is characterized with certainty but inflexibility; and the other one is functionalism method, such as Governmental Interests Analysis. It is characterized with flexibility but indistinct. So neither of the two kinds of methods is effective enough to the object of the pursuit of justice, Through the comparison of these methods, the author gives some suggestions to make them to be in harmony, for example, the doctrine of the most closed connection ,and etc. In chapter 3, the author makes an analysis of four basic methods of the choice of laws. The international private law has formed and adopted some four methods although it has a long history more than 900 years with a great amount of academic woks and cases. The author makes a further study on the mentioned four methods and their co-existence. In chapter 4, the author makes a study on the methods of the choice of law of America, Europe and England and finds out the characteristics of America and England and Europe countries.Finally, in chapter 5, the author puts emphasis on the study of the application of laws in civil relationship with foreign elements in China. That is also the aim of this thesis. The main ideas of this part are: what are the value-orientation and methodology in the methods of the choice of laws? What are the problems existing in the legislation of private international law.