A Study On The Principle Of Party Autonomy In European Choice Of Law Rules In Divorce

In the international private law,the principle of autonomy of will has a long history,and in recent years,there has been a trend from contractual to non-contractual.The extension of legislation of marriage and family is an amazing leap in private international law.The principle of autonomy has expanded in the field of divorce in the EU.With the deepening of the idea of divorce freedom and the spread of the concept of human rights protection,the EU as a "super-national" union,in the context of the increasingly frequent cross-border divorce and the chaotic rules of divorce laws,some member states proposed to develop a unified divorce law application rules.And advocate the introduction of the principle of autonomy of will to the application of EU divorce laws.Compared with the traditional method of individual personal law or court law,allowing the parties to choose their own laws can make the legal application result more certain,consistent and predictable,in line with the psychological expectations of the parties,and improve the court.The efficiency of litigation,which is determined by the intrinsic nature of the principle of autonomy.Finally,in December 2010,the European Commission adopted the Regulations on Strengthening Cooperation in the Field of Law Application for Divorce and Judicial Separation(hereinafter referred to as "Rome ?"),which achieved the unification of the rules applicable to divorce laws among some member states.The principle can be applied in the field of divorce in the EU.The principle of party autonomy is the core principle of Rome ?.Article 5,paragraph 1,of the Regulation combines subjective connection points with the personal law of the parties and the law of the courts.The flexibility of the law can solve the real dilemmas encountered in judicial practice.However,the development of the principle of autonomy of will is not arbitrary,and the regulations also clearly stipulate restrictions on the choice of law for the parties.First,the scope of the party's choice of law is restricted and the regulations clearly stipulate that it is not allowed to be reversed;Second,the method of selecting the law must be clearly stated,signed and dated by both parties;Third,the law of choice must be accepted by the court.It is determined that the parties can change arbitrarily before this;Fourth,the party's choice of law is also restricted by public order.Although the provisions on the principle of autonomy of will in Article 5 of the Rome ? are relatively complete,there may be some problems in judicial practice,such as problems that are difficult to ascertain in foreign law and theexistence of laws avoiding problems,etc.But the relatively scientific legislative model of the Rome ? and the legislator's meticulous legislative thinking still have certain reference significance for the formulation and improvement of relevant laws in other countries.The legislative experience applicable to the EU divorce law is roughly summarized as the following places that can be used for reference in China.First,to explicitly limit the scope of application of the law.Second,to introduce the principle of autonomy of will into litigation divorce.Third,to clarify the parties' choice of law.The fourth is to allow the parties to choose the law while still retaining the application of the law of the court.Articles 26 and 27 of the Law of the People's Republic of China on the Application of Foreign-related Civil Relations Law(hereinafter referred to as the Applicable Law)respectively stipulate the applicable rules of the law for divorce and litigation divorce,and only allow the principle of autonomy of the divorce,litigation divorce only applies to a single court law.China's foreign-related divorce law application rules still have shortcomings in practice.Therefore,China can learn from the Rome ? on the applicable provisions of foreign divorce laws,combined with China's national conditions and the actual situation of foreign marriage and family law development,to explore how to improve China's foreign divorce law applicable rules.Firstly,the scope of application of the applicable law on foreign divorce should be clarified.Articles 26 and 27 apply only to the dissolution of the marriage relationship between husband and wife,and not to the relationship with child support;Secondly,the law should be clarified.Select the validity of the agreement to ensure the validity of the agreement and the validity of the form;Thirdly,give the agreement the effect of divorce to enforce,reduce the possibility of "lamp marriage";Finally,soften the connection point of divorce,apply a single The law of the courts will lead to a large number of parties "forum shopping" and is not conducive to achieving fairness and predictability.