论文部分内容阅读
冲突法中的意思自治原则的主旨是允许当事人自己选择争议适用的法律,这一原则并不是冲突法特有的原则,其实在民商事实体法领域早已有之。实质上,无论是实体法中的意思自治原则还是冲突法领域的意思自治都是围绕着私法自治的理论发展而来的,意思自治原则在冲突法领域运用的根基是私权自治和冲突法价值追求完美结合的必然选择,该原则在中国本土的运用则需要当事人的意思自治,辅之以法官的.意思自治——法官的自由裁量权才能发挥应有的功能。
The principle of the principle of autonomy in the law of conflict is to allow the parties to choose the law applicable to the dispute on their own. This principle is not an inherent principle of the law of conflict, but has long existed in the field of substantive law of civil and commercial law. In essence, both the principle of autonomy in substantive law and the autonomy of autonomy in the field of conflict of law are all developed around the theory of private law autonomy, and the principle of autonomy of autonomy in the field of conflict of law is based on the value of private autonomy and conflict law The pursuit of the perfect combination of the inevitable choice of the principle in the application of the principle of the parties in China will require the autonomy of the parties, supplemented by the judge of the meaning of autonomy - the judge’s discretion to play its due function.