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Rethinking The Breakthrough Of "Public Law Taboo" Doctrine In Conflict Of Laws

Posted on:2013-12-16Degree:MasterType:Thesis
Country:ChinaCandidate:J ZhangFull Text:PDF
GTID:2246330371487978Subject:International Law
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The principal task of traditional conflict of laws is harmonizing private law from different countries by choice of law rules. The forum will not displace applicable forum’s public law in favor of any other law and will refuse to apply foreign public law in most circumstances when dealing with cases including public law issues. This phenomenon is defined as doctrine of "public law taboo" in conflict of laws, which has existed over centuries since its establishment. Because of the economic and social changes, conflict of laws has experienced fierce revolution during20th century which includes great evolution in theories, methods and rules. At the same time,"public law taboo" in conflict of laws became increasingly difficult to sustain as the critique on it. However, after half a century,"public law taboo" still survives.An accurate definition about the scope and content of the "public law taboo" is the precondition for in-depth research. Nevertheless, there are confusions on this problem in current research. The doctrine of "public law taboo" isn’t equal to "public law having no extraterritorial effect" and has no intersection with "public policy exception" of conflict of laws. The proper scope of "public law taboo" is limited in conflict of laws, which forbids forum applying foreign public law. The scope of "public law" contained by this doctrine cannot cover all public law sections.In order to answer whether doctrine of "public law taboo" should be abandon or remain, the history of both theory and practice about this doctrine should be examined. During the establishment and development process of the "public law taboo", the relationship between theories and practices is complicated, and all kinds of theories just partially reflected practices, which have proved more durable than their rationales. The "public law taboo" developed from two rules that were quite distinct historically:(1) a rule against enforcing foreign penal laws; and (2) the "revenue rule" barring enforcement of foreign revenue laws. After establishment, the scope of prohibition was extended to other public laws, but never covered all public laws. With the advancement of globalization, the increase of governmental intervention and the arbitrariness of the division of law into public and private realms, there has been call for extraterritorial application of public law. Since those rationales supporting the "public law taboo" cannot come up with the development of practice, breakthrough in the "public law taboo" and application of foreign public law under particular circumstances have been advocated in conflict of laws. At present, a consensus has been reached in conflict of laws that a foreign provision is not inapplicable for the sole reason that it is characterized as public law. However, the "public law taboo" is hard to be completely broken since the less development of theory and practice on application of foreign public law.Besides breakthrough the "public law taboo" in conflict of laws, both treaty arrangement and extraterritorial application of domestic public law are effective branches to realize extraterritorial effect of public law. There are distinctions on theoretical foundations, implementation approaches and effects among those three branches. It is generally better for treaty arrangement to achieve cooperation on extraterritorial application of public law, since which reflects competition, compromise and reciprocity of sovereign states. However, because of the shortage of conflict of laws and forum, the development of application foreign public law in conflict of laws should be properly limited. Extraterritorial application of domestic public law should be carefully treated, since it has high risks to be abused and intensify the "public law taboo".China usually achieves extraterritorial effect of public law through treaty arrangement. With the development of economic and law, economic regulations, such as anti-trust law, security law etc., have needs to be extraterritorial applied. The theory and practice of Chinese conflict of laws on the doctrine of "public law taboo" almost keep silence all the time. The Act on the Application of Laws over Foreign-related Civil Relationship2010(China) also has no intention to stipulate application of foreign public law, but there still exist some possibilities through interpretation. It is the task for Chinese conflict of laws scholars to conduct rational analysis about abroad experiences, accurate location of breakthrough of the "public law taboo", and scientific framework of extraterritorial application of public law.
Keywords/Search Tags:public law taboo, conflict of laws, domestic public law, foreign public law, extraterritorial application
PDF Full Text Request
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