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Research On The System Of Reservation Of Public Order

Posted on:2006-06-26Degree:MasterType:Thesis
Country:ChinaCandidate:N LiFull Text:PDF
GTID:2166360155954156Subject:International Law
Abstract/Summary:PDF Full Text Request
The system of the reservation of public order has a long history. It is aelastic clause and not easy to be defined. It is different not only in term butalso in content in different countries. These differences make it possible to beabused by court. The author thinks its primary contents should include theinterests of international society. The interests which are base of internationallaw are related to environment,public health, diplomacy, military ones. Publicorder is also concerned about marriage and inherit other interests related tomorality and good habits closely. The conception of public order is, or shouldbe, narrower and more limited in private international law than in internal law.A transaction that is valid by its foreign lex causae should not be nullifiedon this ground unless its enforcement would offend some moral, social, oreconomic principle so sacrosanct in native eyes as to require its maintenanceat all costs and without exception. In the words, of Cardozo. J, in a New Yorkcase:"A right of action is property. If a foreign statute gives the right, the merefact that we do not give a like right is no reason for refusing to help theplaintiff in getting what belongs to him. The courts are not free to refuse toenforce a foreign right at the pleasure of the judges, to suit the individualnotion of expediency or fairness. They do not close their doors unless helpwould violate some fundamental principle of justice, some prevalentconception of good morals, some deep-rooted tradition of the common weal."The reservation of public policy theory that Savigny proposed meant it asexception, while Mancini thougnt it as principle. Great Britain and AmericanStates regard law of domicil as the personal law generally, so their courtsappoint to apply foreign law to a case less likely. In addition, because thesecountries often use qualification to explain procedure law and even criminallaw, it isn't applied necessarily either.With the changes of the times, the reservation of public order developsconstantly, its content is changing, too. The new international order of era ofglobalization will be set up soon, the system of reservation of public order willbe limited in order to prevent being abused by court. The questions that weshould notice in practice are as follows. The problems about how to treatforeign countries'public order here include two facts. First, we mustdistinguish public order on the private international law and public order onthe domestic civil law properly. Secondly, the reservation of public ordershould not contravene sovereign act of other country, and should not be withthe excluding foreign public law. How to apply the system of reservation ofpublic order among district border? Here we must pay attention to distinguishour system from that of federalism countries such as the U.S.A. Should thesystem of reservation of public order be restraint from treaties and generalpractices? Whether the reservation of public order could be a basis of refusingforeign country's public law? Whether the reservation of public order could getrid of law of lack of the recognition of states. Public order and mandatory rules.Public order and mandatory law of the court's residence . I analyze one by onethese questions, and propose the methods to solve them. I think, there arevaried methods to prevent the system of reservation of public order abused.We can restrain it on legislation, administration of justice and theory suitably:We limit to use the system of reservation of public order to a certain extentwith the clear word, which has already become the general purpose ofinternational community. We adopt "result theory"to limit the system throughcertain standard. It is important that we should take notice of the differencesthat the foreign law beaches the system of reservation of public order oncontents or on results. If it is only the infringement on contents, it might nothinder application of the foreign law; We limit to apply the system ofreservation public order in terms of applicable law, namely after getting rid ofthe foreign law we can't substitute it with law of court's residence withoutexception, while we should apply the law of the most significant relationship.The traditional theory of reservation of public order gets rid of foreign law andsubstitute it with law of court's residence. It is unreasonable. Since the rule ofconflict appoints to the applicable law, it proves there are rationality andnecessity of applying the foreign law in this case, this connection of foreignlaw and legal relation is closer, and the application contributes to solve thecase more fairly and reasonably. On the other hand, it isn't inevitable to applycourt's residence law after we get rid of application of foreign law. Judges canlack of impelling of interests, thus this will prevent the system from beingabused. We also restrain judges get rid of the application of internationalpractice. The reason that our country got rid of international commercialpractice by the system of reservation of public order is undoubtedly theconsideration based on two following respects: First, our country implementedin the past planned economy, which is different from the economic system ofmost countries in the world. The country controlled international tradeoverally and strictly, while international commercial practice formed anddeveloped among market economy countries basically. If we didn't limitsuitably the application of international practice, it may damage the wholeplan economy, and it will cause bad influence to national economy. Secondly,in early days of our country's reformation and opening-up, a lot of units whichdeveloped foreign trade and relevant personnel lacked of knowledge ofinternational commercial practice. They are unskilled so as to choose theinternational practice wrongly and lead to loss occasionally. So, making thiskind of restriction in legislation of our country is totally understandable.But now, our country has already established the goal of setting upmarket economy system and we has already understand international practicebetter, whatsmore, we has already made the commitment of application ofinternational practice. In this way, the basis of rejecting international practiceby the reservation of public order disappears, so this kind of regulation doesn't...
Keywords/Search Tags:Reservation
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