最密切联系原则与适用问题

The Doctrine of The Most Significant Relationship And Its Application

最密切联系原则是冲突法发展的必然结果,是在各国立法及其实践中普遍确立和运用的一种法律适用的重要原则。其实质在于软化连接点,增强法律适用的灵活性,从而实现法律实质正义,最大限度地维护当事人的合法权益。其局限性是造成法律规则的不确定,给予法官过大的自由裁量权。我国在立法上确定了这一原则,但对这一原则的运用标准不够具体,在今后的理论与实践中应加以完善。

The doctrine of the most significant relationship is the inevitable result of the development of conflict law, which is widely used in the legislation and practice in many countries. The essence of the doctrine of the most significant relationship lies in intenerating of law to realize its justice, to maintain the legal rights and interests of parties to the greatest degree. Its shortcoming lies in resulting in the instability of rules and providing too much free judgment right to judges. The doctrine has been established in legislation of china, but the standards for applying the principle is not concrete. This principle should be perfected in the theory and practicing in the future.