| Public order has rich connotation, different scholars have different opinions for the concept of public order in different periods. Scholars of continental law system define the connotation of public order by classified forms, but scholars of Anglo-American system are favor of points of application of law. Though there is no authority and unified conception for public order, but the basic moral concept, basic historical and cultural traditions, the basic law principle, all major interests in specific period as basic elements is an important part of public order.If Interregional law conflict shall apply reservation of public order system, there are three different viewpoints of negative theory, identity theory, differences theory in theory circle. In these three viewpoints, one hand difference theory emphasizes on public order should be applied in interregional law conflict; in the other hand, it is should be limited for the application of public order of interregional law conflict in some area. Compared with other theories, difference theory accord with the need of public order in interregional law conflict and be approved by many scholars. In the condition of different legal area of our country, one hand,it is inevitable requirement for the application of public order in special interregional law conflict of our country; in the other hand, it is benefit to the territorial integrity and sovereign integrity for our country. Scholars have different viewpoints. Through a comprehensive comparison, school of difference is reasonable. At present, In different legal regional of reservation of public order in our country, Hong Kong, Macau, relatively perfect. In mainland Chinese regional reservation of public order in the legislation system, apply in the judicial practice, but there are eight shortages in our public order legal system, such as legislation disorder, name inconsistent, not standard applicable laws of contradiction, the choice of law insufficient grounds and so on. American and British is typical of the composite legal area in the world, and in their own countries they have formed a complete set of perfect regional public applicable rules. Such as "full faith and credit", "principle of equality", "the principle of Due process" in American constitution; England apply interregional conflict laws through the rules of "applying the principle with great caution", "substitution mechanism".The successful implementation of these systems provides a valuable experience for Chinese interregional reservation of public order system.Based on these analysis, there are some suggestions in the following aspects for correct implementation of the Chinese mainland interregional reservation of public order system, First, promoting national unity, "one country, two systems" are the basic principles; Second, at the aspect of form, we should realize the ordering and systematize of legislative system of reservation of public order, and alternative "social public interest" with "public order"; Finally, we should establish the basic the applicable rules in the constitution, make "objective theory" as the applicable standards, definite connotation and restriction applicable scope, choose the principle of the most closely connected as the first principle after excluded external area law, then thinking of lex fori,spurn the rule of excluded international practice and distinguish the international public order and interregional public order. |
PDF Full Text Request