Considerations Of Justification Of Law-selecting Approach Of Private International Law In Justifiable Orientation

Justification of law must be accompanied by discussion and the discussion will be ended by acceptability. It goes without saying that private international law is an independent legal discipline. However, there are divergent views on the goal and the method of the legal discipline. Genius jurists have proposed all kinds of spectacular methods, doctrines and theories on which method is the best way to solve foreign-related legal issues, but the concept is complex and unconvincing. Therefore, the uncertainty has diffused across and controlled the legal discipline. Now then, is there objectivity of cognition in private international law? What is the truth of private international law? How should private international law justify law-selecting approach? If people can’t correctly answer these fundamental questions of private international law when they are involved in international civil and commercial exchanges, it will not be changed fundamentally that theories of private international law are in the state of uncertainty, and it will not be satisfactorily solved that how to correctly solve foreign-related legal issues in practices of private international law. Therefore, in the view of dimension of testing the truth of private international law, it is the original intention of thinking, the exploration target and the research value of the paper that how to justify law-selecting approach to solve the problems of conflict and application of law.The paper is mainly consisted of five chapters as follows:Chapter one:introduction. This part studies the basic theory issues of the paper.Firstly, the problem on acceptability of private international law is indeed related to the cognition of the truth in private international law. The correctness of private international law only depends on and is determined by the state accepted by all parties whose interests are relevant to the adjustment of international civil and commercial relations. Therefore, the acceptability is characterizing the truth of private international law and marking the consummation of justification of law-selecting approach of private international law.Secondly, the problem on the bodies involved in acceptability indeed makes it clear who is the source of acceptability of private international law. International civil and commercial public, international civil and commercial subject, legislators and judiciary, they are all involved the transnational legal issues and all effected by them or all relevant to them. Therefore, acceptability of private international law come from their immediate perception, proper satisfaction, conscious recognition and bowed practice.Thirdly, the problem on choice-of-law of private international law is indeed related to the core content of justification of law-selecting approach. As far as the way to solving the conflict of laws, conflict rules carry unilateral method and multilateral method, while uniform substantive rules carry international treaties. Conflict rules are an indirect adjustment method and uniform substantive rules are a direct adjustment method, while substantive law approach is an intermediate adjustment method.Finally, the problem on the justice of orientation focusing on justification indeed determines the dimensions considering law-selecting approach. In the view of the bodies involved in acceptability, logic dimension, procedure dimension, application dimension and effectiveness dimension are the justification orientation on which private international law should focus in succession for the consummation of justification of law-selecting approach. Based on universal basic justification significance, rational strategic significance, formal justice significance and material justice significance, the justification orientation above-mentioned is accepted as justice by people involved in the adjustment of international civil and commercial relations, and then plays an important role of consideration dimension.Chapter two:consideration of private international law in logic dimension. This part provides consideration dimension of validity of logic justification for people involved in the adjustment of international civil and commercial relations evaluating and testing the acceptability and the justice of law-selecting approach.Firstly, when proposing the method to solve foreign-related legal issues by means of inferring an unknown fact from a known fact or finding the best answer to foreign-related legal issues from two or more contradictory statements, rational thinking of justification of private international law must obey logic rules and must have a valid form of reasoning, that is validity of logic justification.Secondly, validity of logic justification will feed back to, conduct and infect the consciousness and the confident of international civil and commercial public by means of declaration of legislators, operation of judiciary and practice of international civil and commercial subject. Therefore, the consciousness and the confident coming from logic power have universal basic justification significance of private international law.Chapter three:consideration of private international law in procedure dimension. This part provides consideration dimension of procedural rationality of discussion for legislators in various countries evaluating and testing the acceptability and the justice of law-selecting approach.Firstly, arrangements of procedural mechanisms of discussion and interventions of procedural norms of discussion inject rational connotation into the discussion procedure in choice of laws, that is the former highlights the rational strategy of justification of law-selecting approach following discussion procedure and the latter ensures rational operation of common discussion and realization of the rational strategy in justification of law-selecting approach.Secondly, unilateral method and multilateral method constantly strengthen the doctrine law peculiarity of private international law and highlight denseness of academic atmosphere and tight closure of practice of private international law. Solving foreign-related legal issues by any method above-mentioned should make persons who are outside of the academia find it difficult to get involved in the problem-solving process. Therefore, the two methods above-mentioned have been all failed by consideration in procedure dimension. It is clear that the degree is low that legislators in various countries accept the two methods. So it is a difficult task that private international law purposes justifying the two methods in the dimension.Finally, substantive law approach provides opportunities for international civil and commercial public and international civil and commercial subject to take part in and decide the planning and the arrangement for their vital interests and burdens. The approach not only can provide the rational procedure for people involved in the adjustment of international civil and commercial relations to reach and produce the consensus recognized and the potential recognition, but also the procedure naturally contains procedural norms that ensure that people above-mentioned can rationally participate in the discussion practice. Therefore, substantive law approach can obviously withstand the consideration of acceptability and justice of the dimension from legislators in various countries.Chapter four:consideration of private international law in application dimension. This part provides consideration dimension of universal of applicable results for judiciary in various countries evaluating and testing the acceptability and the justice of law-selecting approach.Firstly, universal of applicable results, that is certainty, predictability and consistency of applicable results, is a fair and reasonable demand that is in compliance with formal justice. What’ more, it is fundamentally determined by certainty of law-selecting approach. Because the unity of law-selecting approach is a premise step of achieving its’certainty and the feasibility of law-selecting approach is a substantial step of achieving its’certainty.Secondly, whether universal of applicable results is regarded as a basic goal or not by unilateral method or multilateral method, they all can’t withstand the consideration of application dimension. Any one of the two methods can’t ensure certainty of law-selecting approach carried in the process of solving foreign-related legal issues. Therefore, they all can’t help to achieve the goal of justifying law-selecting approach of private international law.Finally, substantive law approach focuses on the creation of true and effective new substantive norms in value-oriented, and then truly and effectively responds to the nature of transnational demand in international civil and commercial exchanges. As far as responding to the transnational demand as starting point and becoming to the situation of ruling of good law, the approach can help to achieve the feasibility and the unity of law-selecting approach. Therefore, substantive law approach can obviously withstand the consideration of acceptability and justice of the dimension from judiciary in various countries.Chapter five:consideration of private international law in effectiveness dimension. This part provides consideration dimension of proper justice of adjustment effectiveness for international civil and commercial subject evaluating and testing the acceptability and the justice of law-selecting approach.Firstly, the demands of justly and lastingly balancing, mediating and coordinating interest relationship of people involved in international civil and commercial exchanges, and the demands of properly satisfying interest demands and expectations of international civil and commercial subject in the comprehensive balancing process, are facing up to the pragmatic considerations of material justice in substantive aspects. What’s more, exploring and achieving the material justice is reflected in the adjustment effectiveness that how to properly adjust several vital interest relationships related to international civil and commercial subject.Secondly, substantive law approach takes the creation of new substantive norms as the core content of the approach. It not only responds truly to the nature of transnational demand in international civil and commercial exchanges, but also places effectively interest demands and expectations of international civil and commercial subject in the first need of international civil and commercial society. The operational process must take several vital interest relationships among international civil and commercial subject, legislators and judiciary as the focus content of the creation of new substantive norms. Therefore, substantive law approach can obviously withstand the consideration of acceptability and justice of the dimension from international civil and commercial subject.Finally, unilateral method often may be summed up as lex fori supremacism and multilateral method often may take conflict justice as the overriding principle. The two methods all don’t take interests of international civil and commercial subject responding to the transnational nature of international exchanges as the overriding principle of the methods. Therefore, the two methods are lack of material justice in effectiveness dimension and it is very difficult that international civil and commercial subject accepts the two methods as justice.