Reasonable Judicial Application Of The Principle Of The Closest Connection In Foreign Related Contracts

In the 1970s,as a reporter,Reese of the United States systematically put forward the principle of the closest connection in the second restatement of conflict law.The emergence of this principle has a huge repercussion in the field of private international law,and China’s judicial practice has also reasonably learned from this principle and given it Chinese connotation according to the actual situation of China’s judicial application.With the deepening of one belt,one road and one strategy,the number of foreign-related cases is increasing year by year,and the relationship between civil and commercial trials and the national development strategy is becoming more and more closely related.It is of great significance for the development of foreign-related civil and commercial trials to improve the judicial application of the principle of the closest connection in China’s foreign-related contracts.The first part of this paper expounds the relevant theories of the principle of the closest connection,analyzes the influence of political and economic factors on the principle,and introduces the three functions of the principle: enhancing legal flexibility,filling the gap and correcting the function.Then it compares the principle with the principle of autonomy of the will and the law of direct application,discusses the application order when there are multiple legal choice methods competing,and grasps the theoretical overview of the principle of the closest connection on the whole.The second part,through the statistics of the application of the principle of the closest connection in the foreign-related contract cases in the past ten years,analyzes the current situation of the judicial application of the principle,and explores the problems in the judicial application of the principle,such as the lack of the judgment standard of the closest connection,the serious tendency of the local law of the court and the abuse of the judge’s discretion,so as to find out the causes of the problems,Find a solution to the problem.The third part is to learn from Europe and the United States,which have developed the principle of the closest connection for a long time and have mature theories,to analyze the modes and methods of applying the principle of the closest connection in judicial practice in Europe and the United States,and to learn their mature theories.We should observe and think about the ways to deal with the practical difficulties of European and American countries in the face of the lack of the judgment standard of the closest contact,the serious tendency of the law of the forum and the abuse of the discretion of judges,and learn from their practical experience of judicial application.The fourth part,according to the experience of Europe and the United States,combined with the actual situation of our country,puts forward the reasonable regulation countermeasures and suggestions for the problems in the process of applying the principle of the closest connection.For example,we should improve the application method of the principle of the closest connection,clarify the legal basis,improve the identification mechanism and design the weight algorithm of the connection point to enhance the original certainty of the closest connection;To standardize the application of the law of the place of the court,we should formulate the applicable rules of the law of the place of the court,train the judicial personnel on the extraterritorial law,and standardize the application of the law of the place of the court;In order to standardize the discretion of judges,we should build and improve the case guidance system and judicial supervision mechanism.