The Study On National Interest In Private International Law

The essential duty of the legal lies in adjusting social relationships,assigning and confirming the multi-dimensional interests.It is also the same in the private international law field.On the surface,it displayed as the conflict with the private international laws,in fact it is the conflict of interests when many legal systems take actions on the same legal relationship at the same time.In the private international law field,the conflict of interests is divided into three stratifications:the interest of litigant,the interest of the international society,National interest.And the idea that National interest is superior appears outstanding in the tradition private international law.Both in the constructing of the system and the researching in the theory,this idea based on the National-sovereignty principle is always present throughout.But as the materials collected by the author,the research achievement that taking systematically analysis on this phenomenon especially using the method of interest analysis are very few.Therefore,the author try to discussing the problem of National interest in the private international law,using the method of interest analysis,expect founding out a new breach for the research in the private international law.The article consists of three parts,altogether over 3000 words.The first part constructs the methodology foundation of this article,introduces the interest and the method of interest analysis,at last introduce this method into the private international law.Before the 20^th century,the private international law was guided by the positivism in method,attached importance to the solution of the conflicts between laws and neglected the essential reason——the conflict of interest which lies behind the conflict law. when we introspect the traditional method,"the method of interest analysis" was led into the private international law field.The second part elaborate the connotation of National interest,the author's understanding,the rationale of National interest——National-sovereignty principle,and comb the discussion about the problem of the foreign law's using or limiting under the influence of the National interest and National-sovereignty principle idea.Finally introduce "the theory of government interest analysis" which combining both "the idea of National interest superior" and "the method of interest analysis" for the first time in the private international law field.The "theory of government interest analysis" is one of the most important theory in the 20^th century,it agrees that if the government's policy would be achieved National interest also be maintained.And a method contains six principles was carried out,introduces the method how to judge whether the government has the interest in the cases,in order to impel the local law's apply as far as possible.The third part introduces two tools which plays important role in safeguarding National interest:"reservation of order" and "directly applicable law"."reservation of order" investigate the National interest on the premise of applying foreign law,it is negative defence, "directly applicable law" formulated a series of mandatory rules in advance in order to exclude applying the foreign laws.They make effects from negative and positive aspects.And How to identify them,and how to reflect National interest will be the main part.In this part, author analysis the typical representations of "reservation of order" in different countries on the purpose of finding their essential characteristic——concerning the National interest.In the aspect of "directly applicable law",author discusses its protecting of the National interest from the background it appeared and its applying field which be restricted in.At last analysis the similarities and differences of "the theory of government interest analysis","reservation of order" and "directly applicable law" when they are used to protest National interest.The forth part discusses the new understanding of National interest in the private international law field under the global economic integration background.The new economical environment requests a equality standpoint and cooperation between countries. And it is essential to pay close attention on the interest of litigant,it is decided by the original intention of the private international law and its private attribute.Limiting the National law reasonable,thinking highly of litigant's interest,especially the protection of the week,in this way the private international law can be impelled into the more civilization step.