With concurrence of contract and tort cases in Private international law, it is allowed to make a choice by parties for identification in domestic law of our country. But the recognition of judges according to the power of the law, which is the regular practice of courts, is not specified. The practical dilemmas of the subject of recognition arise therefore. The relationship between the parties’ choice for identification and the recognition of court should be analyzed in detail. The parties' choice is main, which is the priority and general situation, and court’s recognition in accordance with law is auxiliary, which is the supplement and exception. This principle should be adhered to. The parties shall have the priority of choosing recognition rights. If they do not choose or the choice is vague, court has the obligation of interpretation. At the same time, in order to prevent the expansion of discretion and abuse, the recognition of judges should be restricted. in addition to strictly limit its start situation, principles of legitimate and reasonable, balance of interests, and justice should also be followed, to unify the standards of practice and promote the perfection of the legislation and the settlement of related civil and commercial disputes.%对涉外违约和侵权责任竞合案件，我国国内法对于当事人选择识别予以肯定，但未提起法官依职权识别的情形，而后者却是法院的经常性做法，由此产生识别主体的实践困境。应当具体分析当事人选择定性和法院依职权定性之间的关系，坚持当事人选择为主、法院依职权为辅，前者为优先及一般情形、后者为补充和例外情形的原则。当事人有优先选择定性的权利，其未选择或者选择不明时法院有释明义务。同时，为防止裁量权的扩张及滥用，要对法官依职权定性予以限制，除严格确定启动情形外，还要遵循合法合理、利益平衡和公平正义的原则，以统一实践标准，促进立法的完善和相关民商事纠纷的解决。
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