On The Cause And Consequence Of Judges Discretion Power's Expansion In The Reservation Of Public Order

The purpose of establishing the public order reservation system lies in the maintaining homeland's social public benefits. By endowing the judge with a more extensive discretion power, it is expected to avoid the possible danger in some conflict norm application. But such operation of this system shows great flexibility, due to the fact only the judge have the power to decide whether a foreign law to be applied or not under the particular situations. This makes the judges have the material power to operate the public order reservation system freely. The judge is the factor of the person in that system operation, but the person's factor is the most elusive. Because of this kind of flexibility, this system becomes a two-edged blade. If the homeland laws officer's power usage is not appropriate, then it may cause abuseof the public order reserve system to expel a foreign law's application unscrupulously. This not only will bring the party concerned inconvenience, more disadvantage in resolution of foreign commercial affairs, but also do harm to protect the legal rights of the weak party concerned.This kind of worry not unnecessary worry, practice really looks like that. From the first day of the birth of public order reservation system, the judges discretion power starts to operate freely, and in the evolution process of this system, this power gradually expands with the result of abuse. Investigation of its reason lies in that, first, regardless from its worth, its target, or its function still including its concept, the public order reservation system lacks an objective operation standard, which makes itself hard to be operated and controlled since it presents itself. This causes that system to be reliant on the judge's subjective judgment to a large extent. And thus it is inevitable to be lack of controlling on the judge's discretion power to be exercised.Secondly, we can see further that, the constant expansion of judge's power in the public order reservation system is adapting with the demand of the national sovereignty substantially. The national sovereignty just is the foundation stone of the judges power's expansion and abuse in the public order reservation system.After attack the traditional conflict normto be so formalistic, the scholars then put forward the " substance justice" - this new international private law value target. And the judges become the important "reasonable" means that the nations chase for this worth target in the public order reservation system. Thus judges are given a possibly infinite extend of power, and the public order reservation system becomes the thing that seems almost no use. However, we if abandon the traditional conflict norm and public order reservation system, if we let the judges dance only on the international private law satge, such sovereignty maintenance and discretion power extension will necessarily do bad to the effective construction and normal maintenance on international civil and commerce order. And in the end, not any justice can be realised.Therefore, we should re-establish the public order reservation system at its original value - cancellation the certain risk connotative in the conflict norm, and be the safe valve for the international private law - as target, and combine to adjustment of a judge's discretion power. Let the free discretion power become the equilibrium factor in national sovereignty of the public order reservation system. Only so, the public order reservation system can reasonably function as the afe valve , and its real value just will not be lost under the shadow of the national sovereignty and the national interest.