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留学生作业代写:Anti-induced system

2017-12-12 来源: 51due教员组 类别: Paper范文

下面为大家整理一篇优秀的paper代写范文- Anti-induced system,供大家参考学习,这篇论文讨论了反致制度。自1878年法国福果案至今,反致制度一直是国际私法学界争论不休的问题。反致在保证司法裁决结果的确定性,维护当事人合法利益,增加传统规则灵活性方面发挥了一定作用。但由于其自身的缺陷如适用领域较窄,其运用结果会大大增加司法成本等限制了反致制度的运用。

Anti-induced,反致制度,essay代写,paper代写,美国作业代写

Since 1878, the Fukau case in France so far, the anti-imperialist system has always been an issue of endless debate in the field of private international law. It has played a certain role in ensuring the certainty of judicial decisions, safeguarding the legitimate interests of parties and increasing the flexibility of traditional rules. However, due to its own shortcomings such as the narrow field of application, the use of the results will greatly increase the cost of justice and other restrictions on the use of anti-system. By analyzing the value of Anti-Ch'ing system in traditional private international law and modern private international law, this paper concludes that our country should also pay attention to the value of Anti-Ch'u-ch'u and discuss the construction of Anti-Ch'ing system in our country.

Application of Conflict Rules there are a series of problems encountered in the process of selecting the applicable law, which is one of the more complicated issues. It is a manifestation of the conflict of the conflict itself.

Counter-conception refers to a foreign-related civil relations, A country should be in accordance with its conflict of laws should apply B, and B's conflict of laws also provides for such relations should apply A country law, if A country court finally apply A law This relationship is against. There are broad and narrow terms, broadly defined as remission, transmission, indirect remission and foreign court doctrine.

The judgment of the French Supreme Court in 1878 on the succession of the Fortune made it widely studied and gradually accepted in some countries as a system.

For more than a century, Anti-Chou has existed and continues to develop, not only because of its theoretical and logical fulfillment, but because of its ability to meet certain needs of social subjects, that is, it has its unique value. Therefore, the analysis of the value orientation of the Anti-Tactics can serve as the principle that runs through us when we design the anti-dictatorship system.

The concept of sovereignty has always influenced the understanding of the countries and laws in various western countries in modern times. The application of its own national law by the courts to the courts is to safeguard the judicial sovereignty of the countries where the courts are located. It is also an effective way to safeguard the interests of its own nationals and nations. Whether from the familiarity of the judges or the protection of the national interests of the country, Advantageous. Therefore, when handling cases of conflict of laws, judges always pay more attention to domestic laws instead of avoiding foreign substantive laws and try to expand the application of their laws to safeguard their own interests. From the case of the French case of fortune, far-reaching influence on the system of proletarianism, this effect of anti-party has been shown. The traditional private international law focuses on the national sovereignty and national interests in the conflict of laws. Therefore, Anti-Purification System satisfies the need of all countries to protect their own interests in the application of law.

At the end of the nineteenth century, a group of scholars represented by Savigny advocated that the norm of conflict is a universal rule for the international community. Savigny's law "this book theory" contains a single connecting factors of conflict norms of future theoretical criticism, but since then, the pursuit of the consistency of judgments began to become the value advocated by private international law. Differences in the norms of conflicts between countries make it very difficult to apply the same law of conformity to the same civil and commercial legal relations. To a certain extent, this can enable all countries to apply the same laws in different guidelines on conflict of laws.

Modern scholars have paid more attention to the "human interests" among the cases, and the substantive justice is more valuable than the system justice. In order to eliminate the legal confrontation between different countries, modern private international law no longer rigidly adhere to the theoretical and logical perfection, but more emphasize the actual effect and harmonious value of law. As a traditional issue in private international law, Anti-Ch'ing system has also been given a new value pursuit under the new situation.

The traditional anti-dictatorship system emphasizes the protection of the sovereignty and interests of the country, but neglects the protection of interests of individual parties. Nowadays, the exchanges between civil and commercial affairs in the international community are increasingly complicated and changeable. Anti-induced system can well make up for the single and rigid conflict norms and choose the law more flexibly. As a result, the main values and functions of Anti-Tartar have begun to shift toward greater flexibility in the choice of law and better legal choices. For example, in the handling of foreign-related civil and commercial cases by court countries considering the designation of foreign conflicts, accepting the anti-dictatorship system means that more courts are involved A variety of legal options, which enhances the flexibility of legal choices. In the light of the relevant laws specified in the domestic and foreign conflict norms, judges can compare which substantive law is more able to protect the legitimate interests of the parties and which country's laws and cases are more closely related so as to choose the one that is most conducive to achieving The result is just law, a reasonable solution to international civil disputes.

The modern private international law is no longer pursuing the interests of its own country by means of restrictions on other countries but tries to establish an environment conducive to the harmonious, stable and stable international exchanges of civil and commercial affairs so as to achieve the so-called win-win situation. However, conflicts between private international law in different countries often make law to adjust legal conflicts and the value of the conflict law, which is to coordinate the relations between countries, can not be well realized. However, if accepted, it is objectively based on the guidance of foreign laws invoked by private international law in various countries. Accepting such a legal result will not arouse the resentment of foreign countries. Subjectively speaking, the application of the court's law The goals to be achieved in general are all to the benefit of one's own country, at the very least, a law that is not harmful to one's own country and the courts will be willing to accept it. In this case, the verdict is based on the premise of the application of a fair and reasonable law, so as to seek the consistency of legal effects.

In addition to the traditional goal of consistency of judgment, the pursuit of the law applicable to courts and the "better law" has been given due weight. To this end, various flexible principles have been established and the judge's discretion has been expanded to operate. Article 2, paragraph 2, of the "Restatement of the Second Conflict Law" of the United States provides that if the purpose of the applicable law selection rules is to achieve the judgment the court may apply the rule of law selection in another state, "but subject to practical considerations". The introduction of these operational mechanisms, on the one hand, shows the real need of anti-government, on the other hand, it improves the technological feasibility of Anti-DPA and is in conformity with the notion of fairness and reasonableness pursued by private international law. It is a more practical, Feasible method.

The Anti-Settlement System may have some negative effects while considering the norms of foreign conflicts and seeking the flexibility of choice of law, and may even become a tool for other purposes. Understanding these possible drawbacks will help us to effectively regulate them, coordinate various conflicts of value, and perfect the system.

First, contrary to the law's stability. The application of law should be stable, but the use of countervailing will lead to a lack of stability and predictability in the application of law. Second, it will undermine the sovereignty of China and negate the suspicion of the validity of the norms of internal conflicts. Thirdly, it may increase the number of courts and parties involved. Fourth, flexibility may become an excuse for the courts to extend the law of the courts freely. Since the birth of Private International Law, there has always been a kind of "homecoming complex." When applying counter-conciliation, a judge may extend the application of its own law in the name of avoiding false identification of the difficulties of foreign law and national economic interests, ignoring the fairness of the outcome of the case to the parties concerned.

As to the application of Anti-Ch'ing system in our country, the relevant legislation of our country has been absent for a long time until the 17th meeting of the Standing Committee of the Eleventh National People's Congress on October 28, 2010 passed the Law of the People's Republic of China on Civil Relations Concerning Foreign Affairs Applicable law "to make a clear explanation of this issue. Article IX of Chapter One of this Law stipulates: "Foreign laws applicable to foreign-related civil relations do not include the law applicable in that country." This stipulation clearly states that China will not adopt the anti-dictatorial system. At least from a legislative point of view, we have cut off the possibility of applying the anti-procuratorial system in our country. However, this does not mean that there is no theoretical controversy.

In recent years, the application of anti-procurator system has become a major international trend. There are more and more countries in the international community that are applying the anti-government policy, and our country is playing an increasingly important role in the international community. Exchanges and cooperation within the country, Hong Kong, Taiwan, Maucao and the Mainland in our country are also being strengthened. In some cases, these regions also accept the anti-dictatorship system. Therefore, although Anti-Japanese has its own drawbacks, it also has a great value to our country. The legislation in the Mainland of China should adopt a system of opposition.

Of course, Anti-Confederacy is not a perfect system. We should impose restrictions on Anti-Confederation in legislation so as to make the system more effective and avoid shortcomings and give full play to its role in settling civil and commercial disputes. The extent to which our country accepts the anti-dictatorial system is generally considered to be limited to the extent necessary and not to create an infinite cycle. In my opinion, my country can design the anti-dictatorship system in our country from the following aspects:

Counterattack includes direct counter-attack, indirect counter-attack and diversification. The author believes that our country can adopt direct anti-government and anti-remittance, and it can not be applicable to indirect anti-tariff. This is because judging from the fact that the practice of all countries has not yet accepted indirect countervailing, the relevant countries seem inclined to think that the law of a third country does not include their conflict of laws, because if the third-country law is considered to include its conflict-of-laws, there are two possibilities: First, there is an indirect result which leads to the application of the law of the courts. Second, it refers to the fourth country law. Since the first result so far has not been accepted by the practice of all countries, the second result is even more difficult to allow for the practice of various countries. Therefore, to limit the application of anti-discrimination to a limited number of possibilities can not only be in conformity with the prevailing practice in various countries at present but also avoid the infinite cycle that may arise due to the application of anti-pro-regime.

In light of our country's attitude towards Anti-Tso, the author believes that Anti-Tso should be used as an exceptional system. That is, the laws of a country are, in principle, rejected, but accepted in exceptional circumstances. For example, only the person's status or ability can be counter-done. Because in the face of universally applicable conflict rules, opposition is only an adjunct to the instrument of adjustment. This is because, in most cases, the rules of conflict between the relevant legal systems are the same. The conflict of laws rules of the forum state can smoothly and directly achieve its legislative objectives In addition, a large number of modern and flexible methods of election and the emergence and development of multiple connecting points have greatly restricted the applicable space of Anti-Tso. Of course, it is still a good idea to pursue specific outcomes on specific issues. For example, Section 14 of Chapter 1 of the Swiss Private International Law Act of 1987 stipulates that "antifebhmen" should be taken into consideration only when provided for by law, and in the field of civil status foreign law accepts the Swiss law. This can effectively ensure the consistency and fairness of the judgment.

Since Anti-Chosin itself is a highly flexible and flexible instrument of adjustment, when judges apply anti-Ch'ing principles and how to make decisions in anti-Ch'uan multi-functional systems must be properly judged in specific cases. How judges' discretion can be well guided requires legislators to provide general terms of value provision. For example, Article 8 of the "Restatement of the Second Conflict of Law" in the United States leaves some room for opposition through the flexible provisions of "consistency of results" and "practical possibility", in principle, , Is conducive to the judge to play a more discretionary choice of law. Therefore, in order to provide a standard for the judge's application of ADB's discretion, our anti-UN clause should have a value guidance provision.

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