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Private Order In Private International Law

Posted on:2016-01-13Degree:MasterType:Thesis
Country:ChinaCandidate:L YangFull Text:PDF
GTID:2176330479486263Subject:Law
Abstract/Summary:PDF Full Text Request
Reservation of public order is both a general system in the field of international public law and international private law theories. History of reservation of public order within private international law was broadly consistent with the evolution of private international law itself, which have gone from the twelfth century of the beginning of the conflict rules in northern Italy at the early time, then to mid-period theory, until to contemporary age of reservation public order system.The “reservation of public order” was found in the Anglo-American law system as "public policy", also known as "ordre public" in French law, and "vorbehaltsklausel" or "ausschie bunqsklausel" in German, which are “reservation-clausees”, “exclusion-clausees”, “public order” and “good customs” in Chinese law. It is pointed that the one court in accordance with its dometic conflict rules should take a reference to the foreign law in this case, but accounting for its own basic principles, basic policy and the basic concept of morality or legal. The legislation of the countries used the direct limit legislation mode, indirect restriction legislation mode or mixed restricted legislation mode three mode of legislation to establish the system. Although the effect of the rule of reservation of public order is same, the word "public order" has been different from different understandings. Scholars of two groups of our country explain the meaning of public order separately from the Static sense——public order refers to the state or society of a country’s major interests or the basic principles of law and morality; the dynamic meaning, it refers to a tool to exclude from the designated foreign law. And broaderly, sense of the public order either can be regarded as a court according to the conflict rules specify the application of foreign law or as certain provisions of domestic law. In narrower sense, it includes only the former case in general. In practice, the broader understanding of public order could be opted. Different legal units’ courts were uneven in degree and frequency in the field of judicial practice for the order, which rooted in its ambiguous implication and underdeveloped international private law system of many courtries. At this point, it becomes rougher that the courts used its to exclude foreign law, exclude foreign court jurisdiction and launch an enforcement set by former foreign judgments. Therefore, to perfect our system of international private law is imperative.
Keywords/Search Tags:Interntional Private Law, Public Order, Reservation
PDF Full Text Request
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