论法律适用中的"契约自由"原则——国际合同的自体法

The Principle or the Autonomy of the Parties Will in Applying the Law——The autonomous law out of the international contract

肇始于16世纪的"意思自治"理论,标志着合同准据法理论发展的里程碑,即客观论向主观论的发展,特别是以意思自治为主、辅之以最密切联系原则的合同自体法理论的提出,更是将合同准据法理论推向一个前所未有的高度,它一改过去合同法律适用的机械性做法,强调尊重当事人自主意识,并将契约当做一个整体来看待,体现了国际私法合同法律适用的潮流和趋势。

The term 'party autonomy' initiated in the 16th century, makes the milestone of the theory of the applicable law concerning contracts, which means it develops from objective theory to subjective theory. The proposition of the proper law which holds the principle focus on the autonomy of will with the closest relation as its aid, highlights the theory concerning the applicable law concerning contracts, which the mechanical manipulation of the former applicability of the contract as an entity. It embodies the tendency of the legal applicability of the contracts of the international private law.