On The Principle Of Autonomy Will In The Application Of The Law Of Foreign Real Right

As far as the application of the law of foreign real right is concerned, the traditional private international law has been strictly abide by the laws and rules of the law of the place where the real right depends on the object. However, with the frequent development of international civil and commercial exchanges, the emergence of a new object of the real right, the blend and the influence of real right and creditor’s right with each other, effect of real right and creditor’s right trend, especially the uncertainty of the location which is leaded by the frequent cross-border flow of goods, make according to the disadvantages of object location method of law application highlights, and cannot meet the demand of development of economic and social reality. In the above case, the principle of autonomy has been gradually introduced into the law applicable to foreign real right, and played a more and more important role. The principle can strengthen the autonomy of the parties to choose the law, can enhance the flexibility and certainty and predictability of the choice of law, and ultimately achieves substantive justice. At present, Switzerland, Belgium, Russia and other countries have a clear introduction of the principle of autonomy in the application of the law of foreign property rights in their country. Although the relevant legislation of Germany holding a relatively conservative and cautious attitude towards the principle of autonomy will of law applicable to real right, we are still able to get a glimpse of the principle of autonomy for traces in the real property right legislation system. The applicable law in 2010 and the relevant judicial explanation, has made specific provisions for the principle of the autonomy of will in the applicable law of foreign real right, and has greatly promoted the development of private international law of China. However, there are still some defects in the relevant laws and regulations of our country, which limit the full play of the role of the principle of autonomy of will. In view of this, this paper will put forward specific legislative proposals to improve China’s foreign property rights applicable law of the principle of autonomy of the will, which bases on making full use of the relevant legislation experience of the major countries in the world, and combines the discussion on the current legislative situation of our country.In addition to the introduction and conclusion, this paper is divided into the following four parts:In the first part, it introduces the basic principle of autonomy will in the law of the applicable law of foreign real right. Autonomy will in the sense of international private law can be defined as a choice of law that the parties in foreign-related civil cases have the right to have a choice of law in a country or region to govern the relationship of rights and obligations between the two sides on the basis of consensus, and does not violate public order and mandatory law rules. There is very close relationship between autonomy will in sense of international private law and autonomy will in sense of civil law,and autonomy will in sense of international private law can be regarded as the extension of the sense of civil law principle in a certain extent. However, belong to the different areas of law concept, there are many significant differences between the two sides, such as the historical origin, the prerequisite conditions, legal restrictions, the idea of law, the role and status, and so on.The second part elaborates the theoretical basis of introducing the principle of autonomy in the law application of foreign-related real right. The introduction of autonomy will principle in the field of private international law in particular application of law in the field of real right, is not only the inevitable requirement of the theory of autonomy of private law, but also the inevitable demand of the legal theories such as substantive justice theory, property rights theory and benefit of law theory and so on. The theoretical system composed of the above mentioned theory has become the basis of the theory of autonomy in the field of application of law to foreign real right in China.In the third part, there is a comparative analysis of the provisions of the principle of autonomy will in application of law in the field of real right in Switzerland, Germany, Belgium and Russia. Among them, the relevant legislative practices in Switzerland, Belgium and Russia and other countries are more specific and clear, while the legislation in German has a conservative and cautious attitude to the principle of autonomy will. Contrast of the legislative style of the different countries and inspection of the successful experience are helpful to improve the principle of autonomy in China.The fourth part has an investigation in detail the status quo of the autonomy principle in the application of laws concerning foreign real right in China, and put forward the concrete suggestions on improving the relevant legislation in our country. The current legislation of our country has made specific provisions for the principle of autonomy will in the application of law to foreign real right from the following aspects, such as the legal status, the legal choice way, scope of application, legal restrictions, and so on, but relevant laws and regulations have many defects, such as the choice of law method to choose the legal time, applicable conditions, priority of validity, the legal limit, and so on.Specific provisions in the future legislation should perfect the principle of autonomy in the application of law to foreign real right from the following aspects, such as perfecting the mode of choice of law, and having the specific and clear requirements to improve time implied choice; perfecting the time of choice of law, canceling restrictions related to selection of time in current legislation; stipulating the priority principle of autonomy will; limiting the scope of the principle of autonomy will, clearly stipulating that the principle of autonomy is only applicable to the arbitrary rules of dynamic property; clearly stipulating the conditions of specific provisions of the principle of autonomy will; strengthening the restrictions of the choice of law, and clearly stipulating that autonomy will not against the third people in good faith.