On The Review And Resolution Of The Judicial Dilemmas Of "The Better Law Clause" In China's Conflicts Law

The Law of the People's Republic of China on Choice of Law for Foreign-related Civil Relationships,implemented in 2011,made itself a typical representative of transplanting foreign laws by specially drawing on better law approach.In the law,some conflict rules in family are called "the better law clause",which expressly adopt peculiar legislative form like"the laws in favor of protecting the rights and interests of the persons being maintained in the law at A,B,C...shall apply to maintenance".However,any ideal law will be ineffective given that law in the books does't become law in action.Therefore,the situation in judicial practice of "the better law clause" is worthy of in-depth discussion.In consideration of its legal issue,this paper strives to justify the conclusion that "the better law clause" encounters dilemmas in judicial practice,and judicial rule is a realistic approach to solve this problem.In order to support this idea,firstly this paper demonstrates the judicial dilemmas by analyzing China's court verdicts,which apply "the better law clause"as governing rule.Then this paper explores the legal reasons of these judicial dilemmas.Afterwards this paper returns to analyze the theory of "the better law clause",including its jurisprudence,legislative feature and judicial characteristic.Finally,this paper puts forward the contents of judicial rule of "the better law clause" on basis of analyzing its necessity and feasibility for solving the problem.According to the above-mentioned idea,this paper consists of four chapters in detail with methods of empirical analysis and comparative analysis.Chapter one,The Judicial Dilemmas of "the better law clause" in China's Conflicts Law.In this chapter,The author analyzes China's court verdicts which apply the "the better law clause" as governing rule and finds out that judicial dilemmas of "the better law clause" are able to be summarized into four forms,which are misapplication of conflict rules,misuse of lexi fori,reduction of logic inference and Negligence of Interpretation.Chapter two,The Legal Incentives of Judicial Dilemmas of "The better law clause" in China's Conflict Law.In this chapter,the author summarizes three incentives,including defect of legislative provisions,absence of refereeing rules,consideration of judicial efficiency.Chapter three,The Theoretical Features of "The better law clause" in China's Conflict Law.In this chapter,the author discusses the typical features of "the better law clause" from the aspects of jurisprudence,legislative feature and judicial characteristic.In the view of the author,the "the better law clause" contains the connotation of Legal Realism,legislative orientation of merging substantive justice and conflict justice,and unique judicial style.Chapter four,The Solution Path of Judicial Dilemmas of "The better law clause" in China's conflict law.In this chapter,the author elaborates on the necessity and feasibility of the judicial rule for solving the judicial dilemmas of "The better law clause".Furthermore,by using the method of legal interpretation,the author demonstrates the judicial rule of "The better law clause" from the aspect of characterization and selection of the conflict rules,proof of foreign law,comparison of "favorable",adoption of Applicable Law and reasoning.