On The Principle Of Autonomy Of Will In The Relations Of Foreign Marital Property

The autonomy of will as the core of contract freedom,along with the rapid development of the market economy,the rationality has been promoted and carried forward in the international private law,which has gradually broken through the traditional field of foreign-related contracts and played an important role in the conflict law rules in the field of tort,property rights,marriage and family.The marriage and family law is the most difficult fortress to conquer the unification of private international law,among which,the law application of the relations of foreign-related marital property is paid more and more attention.Since both spouses have the certainty and flexibility to choose the law or the marital property agreement,and can balance the demand of formal justice and substantive justice,plus the theory support of the contract of marriage relationship and the principle of divorce freedom,make the autonomy of will be developed and perfected in the field of the relations of foreign-related marital property,and has been universally accepted by the legislation and practice of conflict law in various countries.However,the personal and partnership characteristics of the relations of marital property are restricted,as well as protecting the legal rights of the third person to maintain the transaction order,the degree and scope of the autonomy in this field is much more limited than that in the field of foreign-related contracts,and the countries affirm their application and stipulate the examination and procedure requirements of different degrees and different scopes.Moreover,there are different legislative provisions and theoretical viewpoints on the key issues concerning the application of the law of the marriage agreement,the validity of the law,the restriction of the compulsory substantive law,the protection of the interests of the third person and the change of the choice of the applicable law.It is difficult to make breakthroughs in conflict law development in the field of property relations between foreign couples.Its legislative purpose and the trend of the development of private law are consistent,in the specific content of the first systematic regulation of the law applicable to the relationship between couples of the basic rules,and gives the parties a limited sense of autonomy right,but the drawback is that there still exist legislative gaps and imperfections in the specific application details,which need to be based on our country’s reality,and draw on the foreign advanced legislative experience and mature theoretical results,and put forward relative comprehensive suggestions and countermeasures to improve.This paper focuses on the application of the autonomy of will in the relations of foreign-related marital property,mainly from the following four aspects:The first part is the theoretical research content,and analyzes the basis of applying the autonomy of will in the field of property relationship.On the theoretical basis,the contract of marriage and the principle of divorce freedom insist that both spouses have the freedom to choose the applicable law for the marital property relations with private law,and the value pursuit of substantive justice also respects the right of the parties to choose the law.The legal application of the agreement between husband and wife has realized the certainty and predictability of law application while guaranteeing the autonomy of private law,and saved the lawsuit resources.From the point of rationality,the autonomy of will gives the parties the freedom to choose the law,and it strengthens the autonomy and flexibility of the application of law,and balances the contradiction between the common property system and the separate property system,the property unification system and the property division system,the quasi-law variable theory and the immutable theory,and the domestic legal doctrine and the domicile law.It has eased the contradictions between different legal systems and the conflict of sovereignty.The second part is the question,analyzes the legislative blank,the specific details stipulation vague and the substantive law limitation in the field of the foreign couple’s property relations.The legislative blank includes the legal application of the marriage agreement and the protection of the interests of the third person;the ambiguity of the detail stipulation includes the question of the validity of the choice of law and the validity after the change of the law,and finally the substantive law restriction of the law choice in the field of property relations.The third part is the reference of foreign legislation,through the comparative analysis of the system of common law and the system of civil law of foreign couples in the field of property relations,the principle of the application of the specific provisions and different restrictions,summed up their similarities and differences and their advanced legislative experience,for Chinese relevant legislation and practical problems.The forth part is the solution of the problem,and the author studies and analyzes the suggestions on the application of the autonomy of will in the property relationship.The law application of foreign-related civil relations builds the basic frame of the law application of the foreign-related marital property relationship,but there are still many deficiencies to be perfected.Firstly,to make up for the gaps in existing legislation,to increase the legal application of marriage agreements and the protection of the interests of the third party provisions,the form of marriage agreement to comply with the contract,the law of the court,the marriage agreement to conclude the law of one of the effective;the substantive aspects are subject to the contracting capacity is more appropriate by the law of matrimonial domicile as the applicable law;the contents and changes of the marriage agreement should be in good faith and the marriage agreement which damages the interests of the third party should not be recognized.Secondly,to clarify the vague provisions of the application of the law,the legal choice to the implied way should be strictly determined in combination with the specific circumstances of the case,the effect of the changed marriage agreement is traced to the establishment of the marriage relationship,but it shall not impair the lawful rights of others.The procedure can be used for reference to the German registration system and the French notary system to prescribe procedural restrictions.Finally,the restriction of the forcible substantive law should be more targeted,the public order reservation system is the general restrictive method in the whole international private law,only as the fallback principle of excluding the improper application of the foreign law.The legal choice made by the husband and wife agreement shall not exclude the minimum identity obligation stipulated in our marriage and family legislation and the relevant provisions to protect the interests of the disadvantaged party in the family.