How to evaluate the weak in private international law Poor

The weak party in private international law should be defined as the party in a weak and disadvantageous position in a foreign-related civil and commercial relationship due to objective reasons such as social conditions or personal ability. For example, children, wards, adoptees, and dependents in the field of foreign-related marriage and family who need to confirm their status as legitimate children; Victims of foreign-related infringements, especially victims of foreign-related product liability cases. Based on this, the principle of protection of the weak in private international law means that when formulating, applying, implementing and interpreting private international law, it should focus on protecting the legitimate rights and interests of the weak in international civil and commercial relations.

You look up the book on Private International Law (written by Peking University).

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The principle of autonomy of will refers to the legal principle that the parties to a contract can freely choose to deal with contract disputes, and it is the most common principle for determining the applicable law of a contract. This principle was first derived from the 16th-century French doctrine of autonomy of the will of Dumoreland. He argued that the contract should apply the custom chosen by the parties themselves, and that the court should presume what the parties intended to apply to the substantive elements and effects of the customary contract.

The general limitations on the principle of autonomy of will include: (1) limitations of a legal nature. The parties can only choose the arbitrary law of the relevant State and cannot circumvent the jus cogens law of the relevant State that should be applied; The law chosen is the substantive law, not the conflict of laws.

2) Restrictions on the subjective minds of the parties. The choice of the parties must be bona fide and lawful. (3) Restrictions on the selection of subjects.

To protect the interests of the weaker party, the law chosen by the stronger party does not apply. (4) Restrictions on public order in the country. The law chosen must not contradict public order in the country.

There are several opposing propositions on how to interpret autonomy of will: (1) According to whether there is a restriction on the choice of the parties, it is divided into unlimited autonomy of will and limited autonomy of will. In the former, the parties can choose the law of either country; The latter means that the parties can only choose one of the prescribed countries or can only choose the law of the country with which the parties or the contract is linked.

2) Depending on whether the court is allowed to presume the parties' intention to choose the law, it is divided into express autonomy and implied autonomy. The former is a clear choice of law clause in the contract or an oral express intention to choose the law. The latter is when the parties do not make an express choice of law, and the court often presumes the intention of the parties to choose the law based on indications or from the words of the contract when dealing with disputes.

3) Depending on whether the contract can be divided into several parts, the applicable law can be selected separately, and it is divided into the autonomy of will of the divisible choice and the autonomy of the will of the indivisible choice. In the former, the contract can be divided into several parts, and the applicable law to which they apply can be selected. The latter is only allowed to treat the contract as a whole and to select the aspects of the contract to which the applicable law applies.

The principle of autonomy of will is based on Article 4 of the General Principles of the Civil Law, first of all, which states that civil activities shall follow the principle of voluntariness. The second is Article 4 of the Contract Law:

The parties enjoy the right to voluntarily conclude contracts in accordance with law, and no unit or individual may illegally interfere with them. Thirdly, in the basic civil laws and civil laws, the law also stipulates the principle of autonomy of will from different perspectives, thus forming this basic concept and principle of civil law.

The existence and realization of the principle of autonomy of will is premised on the existence and realization of the principle of equality, and the basic principles of the new civil law are derived from this. With the excessive development of the sanctity of private rights and the autonomy of will, many unfavorable factors have been brought to the social structure and system. As a result, people restrict the sanctity of private rights and the autonomy of will on the basis of the new civil law principles of honesty and credibility in transactions, public order and good customs, and prohibiting the abuse of rights.

In this way, the entire system of civil law principles can reach an ideal state of checks and balances of rights, and jointly support and construct a complex system of civil law theory.

The principle of voluntariness refers to the right of civil subjects to engage in civil activities according to their own wishes without violating the mandatory provisions of the state. Parties engaged in civil activities must be autonomous and voluntary, and no civil subject can use economic advantages or administrative power to compel others to perform certain acts or refrain from performing certain acts.

That is, the parties choose the applicable law and do not have to wait for the judge to determine the applicable law.

In litigation related to foreign-related contracts, the parties may agree to choose the court in which the lawsuit is filed and the applicable law to which the disputed issues are applicable.

The principle of party autonomy refers to the time, method and scope of the choice of law agreed between the parties, and there are two ways to choose, express and implicit, and the legal provisions of different countries are different.

The limitation of autonomy is 1: it is subject to the law that should govern and contract or the jus cogens law in the law of the forum.

2: The choice of law must be in good faith, lawful, and not contrary to public order.

3: Restriction 16081228 of the same intention in the application of the law of several special contracts

1) The main content of the theory of legal relations (scholars, writings, reasons for the theory, main viewpoints, etc.) ）