The Limitations On Party Autonomy In Contracts Conflicts Law

The principle of party autonomy was firstly established in contracts. It has gradually become the primary principle in contracts conflicts law after the development of several centuries. There are many limitations on party autonomy to countervail the abuse of it after its birth. After the 1950s, two main limitations on the party autonomy are the mandatory rules and the principle of protection of weaker party.After the implementation of the Act on the Law Applicable to Civil Relationship with Foreign Elements and Interpretations of the Supreme People’s Court on Several Issues Concerning Application of the Law on Foreign-Related Civil Relations of the People’s Republic of China (Ⅰ), the application of party autonomy principle has laws to stand by. But needless to say, even if supplemented by judicial interpretation, the current legislation is still too macro and lack of operability, especially the limitations on the party autonomy is not clear. In detail, the provisions on mandatory rules and public interests are too vague. As to the principle of protection of weaker party, there are only two rough provisions on the consumer contracts and labor contracts and lack the regulation of the applicable law of insurance contracts.This thesis makes a concrete analysis about the limitations on party autonomy from the perspective of comparative study. Comparing the legislations and judicial practices in the European countries and the United States, discussing the limitations on party autonomy and exploring reasonable model of limitations on party autonomy, in order to achieve the worth objectives of party autonomy principle.Part I discusses the rationale of the value orientation and the limitations of the party autonomy, makes a theory analysis of the limitations on party autonomy. Party autonomy principle has its boundary, it is the unity of freedom and restrictions of choice of law and couldn’t be abused.Part II makes a comparative analysis of legislations and judicial practices in the European countries and the United States, discusses the mandatory rules and the principle of protection of weaker party. On the one hand, the author explores the mandatory rules. Rome I Regulation provides a relatively complete system about mandatory rules and it becomes an important rule in the field of contracts conflicts law. The United States does not introduce the concept of mandatory rules and the courts often invoke "public policy" or "fundamental policy". On the other hand, the author discusses the principle of protection of weaker party. Many countries set special rules which cannot be derogated from by agreements in special areas such as the consumer contracts, the employment contracts and the insurance contracts, in order to limits the autonomy of the parties and protects the weaker party.Part III explores the problems of limitations on party autonomy in the Chinese legislations and judicial practices, and give several suggestions.To sum up, through the comparative analysis, and combining empirical research and theoretical research, this thesis presents a detailed illustration of the limitations on the party autonomy, and finally return to the problems in legislations and judicial practices in our country, hoping to contribute to the perfection of legislations in China.