On The Favorable Clause In Conflict Of Laws

Throughout history,justice has always been a value pursued and revered by people.Law has been inseparably linked with justice since its inception,and law is not only the main tool to maintain justice,but also represents the definition and pursuit of justice in a country and even in the international community.Justice has the characteristic of Proteus,and justice in different times has different meanings,the criteria for judging justice show pluralistic characteristics with the historical development and changes of times.The concept of justice is not difficult to define and explain,and there are many concepts of justice that are accepted and accepted by society.Jurists have categorized and summarized justice in different ways,such as average justice and distributive justice,procedural justice and substantive justice,conflict justice and substantive justice,which shows that people’s demand for justice can be realized in stages and at different levels.In this regard,the fundamental question of justice lies in what kind of justice is to be pursued in a particular spatial and temporal context.Modern civil law has moved beyond formal justice to the pursuit of substantive justice.This shift is also taking place in private international law,where the term "private international law" can be viewed in two parts,with "international" representing the character of the dispute it resolves,with which more than a single country or region is associated.The term “private law” draws the line at the scope of the dispute,which,unlike public international law,should be more oriented towards the defense of private rights and interests.Thus,private international law should focus on the interests of both parties to a dispute,and not on the interests of the state to which they belong or the state with which the dispute is linked.Although this view has been controversial worldwide,the term "international" in private international law reflects the internationalist vision in the field of international law,where national legislators can pretend to act as agents of an international legislative structure,and they should treat foreign law and litigation disinterestedly,fairly and equitablyThis article constructs the "favorable clause" from the substantive value orientation of conflict of laws,which reflects the pursuit and change of substantive justice in conflict of laws.By studying the concept of justice in conflict law,we explore the changes in the value of justice in conflict law.The value of justice in conflict law is concentrated in the conflict norms,and the provisions with substantive orientation in conflict norms are mainly manifested in two aspects: the maintenance of the free will of the parties and the protection of substantive justice for the weak.In summary,they are mainly reflected in the validity of legal acts,the establishment and dissolution of legal relations,and the protection of the weak party.The summary of conflict norms in conflict of laws with the orientation of substantive justice can provide reference and ideas for the improvement and construction of "favorable clauses" in China’s conflict of laws.The first chapter of this paper explains the content and connotation of the favorable clause.The favorable clause is a general term for conflict norms with substantive value,which reflects the transformation of conflict justice to substantive justice in conflict law.The core value of the favorable clause is to realize substantive justice,and freedom and equality are the core content of justice.The pursuit of freedom and equality in law has never stopped.Since the birth of natural freedom in natural law,freedom and equality have been important values that cannot be avoided in the development of law.At the same time,freedom and equality are also the cornerstone of the modern private law system,which is built on the framework of the principle of private law autonomy,including freedom of contract,freedom of marriage,freedom of will,and many other aspects.However,with the development of society,capital and globalization have brought about the differentiation of the status of civil subjects.As a result,the substantive law provides tendency to protect the consumers and workers whose status is vulnerable,in order to maintain the fairness and justice of the substantive law.The pursuit of substantive justice has also made huge waves in the field of conflict of laws.The revolution of American conflict of law has launched an impact on the traditional choice of law system which focusing on conflict of justice,and the various theories and doctrines arising from the revolution have become a catalyst for favorable clauses.The choice of law system which pursues substantive justice is the embodiment of the favorable clause in conflict of laws.With the establishment of the principle of protection of the weak,the favorable clause has further taken root and grown in the conflict of laws.The second chapter of this paper discusses conflict justice and substantive justice in conflict law.Traditional conflict law focuses on the pursuit of conflict justice,and the sitz of legal relationship theory proposed by Savigny has caused a disruptive impact on private international law and created a new path for the system of choice of law.The Savigny-style conflict norms have the certainty,simplicity,and predictability of legal application,which is conflict justice.In the 1960 s,revolution of the American conflict of laws caused the emerging of various modern methods of law selection,which directly attacked the Savigny-style conflict of laws norms by pursuing the concept of substantive justice,advocating dealing the conflict with case-by-case approach.The idea of the pursuit of substantive justice in conflict of laws has also rapidly fermented in the field of private international law,and civil law countries have eliminated the singularity of connecting factors and the pre-determined content of conflict of laws legislation by the introduction of the closest connection theory,plural connecting factors,and re-typing designated causes.So as to take into account the conflict justice in the process of choosing the applicable law and enhance the substantive justice in the result of applying the law.Chapter three of this article introduces the conflict norms in favor of the validity of legal acts,which are mainly embodied in favor of natural persons with civil capacity and in favor of the validity of wills.Various countries have different regulations on the civil capacity of natural persons due to various factors such as customs and culture.When a conflict of laws arises,the personal law is usually applied to determine whether the parties have civil capacity,but the strict application of personal law is not conducive to civil and commercial interactions.When trading with a foreigner,the actor is unable to determine whether the foreigner has civil capacity.In order to maintain international civil and commercial intercourse,conflict norms favoring parties with civil capacity have come into being.Favoring the validity of wills is based on the principle of freedom of will.Both the Roman law and our consistent will system respect the free will of the parties,but the crucial controversy in the will system is the abuse of power under the banner of freedom.In order to limit the principle of testamentary freedom,civil law countries usually provide the "legal portion" for legal heirs to limit the testator’s complete freedom to dispose of property.However,the principle of testamentary freedom is still the core element of the testamentary system.The principle of testamentary freedom is reflected in the application of the law in favoring the establishment of a will.The conflict law favoring the establishment of wills focus on the validity of the form of wills,while the conflict norms favoring the validity of the substantive elements of wills are fewer,but they are a new development that cannot be ignored.Chapter four of this article introduces the conflict norms in favor of the establishment and dissolution of legal relationships,which includes the establishment and dissolution of marriage and the establishment of paternity.One of the manifestations of globalization is the movement of people,which is accompanied by the problems caused by foreign-related marriages.Since marriage law is highly territorial,there are differences in the formation of marriage policies,institutions,and status regulations,and the differences are reflected in the requirements or restrictions on the establishment of marriage.In order to prevent the emergence of lame-duck marriages and to protect the rights of the parties to freedom of marriage,the conflict norms in favor of the establishment of marriage.The development of the divorce system from doctrine of prohibition of divorce to permissive divorce,from fault-based divorce to no-fault divorce,it reflects the continuous development of the freedom of divorce.The provisions in favor of the establishment and dissolution of marriage in the application of the law reflect the protection of human dignity,the support of freedom of marriage and the promotion of equal rights for men and women in private international law.The application of the law in favor of the establishment of paternity reflects the principle of protection of the weak in private international law,in order to maintain the stable operation of the family and society and to protect the rights and interests of the children who are vulnerable in the paternity.From the perspective of conflict of laws,it is necessary to eliminate discrimination against children born out of wedlock and strengthen the protection of their rights and interests,and on this basis to promote the establishment of paternity through conflict norms.Chapter five of this article introduces the conflict norms in favor of protecting specific parties,which include favor protection of victims in torts(product liability and environmental torts),favorable protection of weak parties in special contracts(labor contracts and consumer contracts),and favorable protection of children’s interests.Favorable protection of specific parties concentrates on the principle of protection of the weak in private international law.The Rome Convention of 1980 is an important contribution to the development of favorable clauses,not only for the protection of workers in labor contracts and consumers in consumer contracts,but also for the protection of victims in product liability and environmental torts.These favorable norms have vital influence on the legislation of civil law countries’ conflict laws,and these countries have included the protection of the weaker party in their conflict of laws’ legislation.Chapter six of this paper reviews and improves the conflict norms with substantive value orientation in China’s Applicable Law from three aspects: favoring the validity of legal acts,favoring the establishment and dissolution of legal relations,and favoring the protection of specific parties.The value orientation in China’s Applicable Law has shifted from the traditional conflict justice to the protection of substantive justice.It reflects the respect of our conflict law for the free will of the parties and the protection of the interests of the weak.This makes the implementation of substantive justice in our conflict laws’ legislation has been at the forefront of development,but there are still some shortcomings in the establishment of the provisions and judicial practice,which may lead to the defeat of its legislative purpose and difficulties in judicial practice.By comparing the legislation and judicial practice of favorable clauses in various countries,we can reflect on the shortcomings in the Application Law and provide the path of improvement.