论意思自治原则在家庭法中的适用

On the Application of the Principle of Autonomy of Will in Family Law

摘要: 随着时代的发展进步，国际民事交往的日益频繁，传统的冲突规范已经不能满足时代的需求，所以意思自治原则就被推上了时代的尖端。将意思自治原则纳入到家庭法的领域，是现代国家冲突规范的发展趋向。当然，涉外家庭法中涉及了当事人的身份关系还有各国的公共利益公序良俗等，也就意味着意思自治原则在适用中受到了一些限制。本文主要通过对意思自治原则的内涵、历史与发展、在家庭法领域中的具体适用情况、适用中的限制和意思自治原则适用的现实意义，并结合了我国国际私法上的法律规定还有国际上的各国的做法来论述意思自治原则在家庭法领域的适用。研究发现虽然意思自治原则会有一些方面的限制，但在法律冲突规范中适用很有现实意义且适应时代。

Abstract: With the development of the times and the increasing frequency of international civil exchanges, the traditional conflict rules cannot meet the needs of the times. Therefore, the principle of au-tonomy in the application of foreign civil law is particularly necessary. In many countries, the principle of autonomy of will has been incorporated into the field of family law, which is the de-velopment trend of conflict norms in modern countries. Of course, there are some limitations in the application of the principle of autonomy while foreign-related family law involves the identity relationship of the parties and the public interest and public order of each country. This paper discusses the application of the principle of autonomy in family law mainly through the principle’s connotation, history and development as well as its specific application in the field of family law and limitations in application with the practical significance of application, combined with the legal provisions in international private law of China and the international practice of all countries. The results show that although there will be some restrictions in the principle of autonomy, the application in the conflict of laws is of very practical significance in tune with the times.