对最密切联系原则的法经济学分析--兼评我国《民法典》草案第9编中关于最密切联系原则的规定

最密切联系原则自20世纪中叶产生于美国,现已为各国国际私法立法所采纳,对晚近各国的冲突法立法造成了深远影响.从经济学的角度,它是对各方效益最大化和效率的追求,但不加限制的最密切联系原则却会造成诉讼成本和司法资源的浪费.所以我国在合同等领域的冲突法立法中可以采用最密切联系原则,但对该原则赋予法官的自由裁量权必须给予适当的限制.

Legal Economic Analysis concerning the Doctrine of the Most Significant Relationship-Concurrently Commenting on Stipulations about the Doctrine of the Most Significant Relationship in the Ninth Chapter of the Draft of China's Civil Code

Since the doctrine of the most significant relationship was formed in America in the mid-1900s, it has been adopted by many countries in their making of Private International Law. The doctrine has had great influence on the legislation concerning conflict of laws in many countries in recent years. From the perspective of economics, the doctrine aims at maximizing benefits to each party and seeking efficiency. However, failure to keep it within limits will bring about waste of litigation cost and judicial resources. Therefore, the doctrine of the most significant relationship is to be adopted in our contract legislation concerning conflict of laws with proper restriction of judicial discretion.