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On The Application Of Compulsory Norms In Private International Law

Posted on:2015-07-04Degree:MasterType:Thesis
Country:ChinaCandidate:X M ChenFull Text:PDF
GTID:2206330461973404Subject:International law
Abstract/Summary:PDF Full Text Request
In recent years, as a directly norms, the mandatory rule has been a basic system in European private international law. It enriches the choice-of-law system of European private international law, also enhances the entities of private international law orientation, promotes the cooperation in the field of public law, but in the process of applying mandatory rules, there are some difficulties, such as the standard of mandatory rules is different, the scope of mandatory rules is fuzzy, the lack of judicial authority and public taboo. The article is from the applicable problems of the court mandatory rules and obstacles of the foreign mandatory rules to analyze the difficulties in applying mandatory rules, trying to explore the way to overcome these difficulties, and put forward suggestions on the applicability of mandatory rules in our country.Apart from the introduction and conclusion paragraphs, this article is divided into four chapters.The first chapter explores the basis of the article, by means of studying the origin, development and significance of the application of mandatory rules. This chapter indicates that mandatory rules entering into the International private law have been divided into two stages by the mandatory rule system, the scope of mandatory rules has extended to foreign mandatory rules. The applicability of mandatory rules can balance the substantive justice and formal justice, can make clear the border of autonomy, can promote judicial cooperation in the field of international lawThe second chapter analyzes the problems and obstacles about the applicability of mandatory rules. First, it’s difficult to define the limit of applying the court mandatory rule, in other words, it’s difficult to identify mandatory rules in international private law and the applicable scope of mandatory rules. Second, applying directly to foreign mandatory rules will encounter many obstacles, that is, the foreign mandatory rule is difficult to ascertain, public law taboo, lack of legislative authorization for applying foreign mandatory rules, and the randomicity of applying foreign mandatory.The third chapter summarizes the efforts of the recent theories and practices to solve the difficulty. First, the applicable problems of the court mandatory rule can based on the principle of self-restraint, by way of making use of incomplete list to clear category of mandatory rules in private international law, introducing the principle of close contact in case to clear the scope of international mandatory rules. Second, to solve the applicable barriers for the foreign mandatory rules, we can make the standard of mandatory rules clear, strengthen the certainty of applying the foreign mandatory rule, break the public law taboo and so on.The fourth chapter puts forward suggestions on applying mandatory rules in Chinese Private International Law. Mandatory rules in our country should take precedence over reservation of public order, evasion of law. We should learn from the common practices in the international community, restrain to apply the court mandatory rule. At the same time, in the existing legislation framework, China can adopt applicable law method and substantive law method to apply foreign mandatory rules. For the time is right, should perfect our conflict law to admit foreign mandatory rules to be directly applied.
Keywords/Search Tags:mandatory rules, public order, evasion of law, public law taboo
PDF Full Text Request
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