The Theory Of Mandatory Rules Of Private International Law In Our Country

Mandatory provisions of international private law is a relatively new theory of international private law, which have direct protection on major national and social interests that enrich the development of the traditional private international law, and improve the theory system of contemporary private international law. The direct applicability of mandatory provisions has been explicitly stipulated in Article4of "foreign-related civil relations law" which passed in2010. This is our first time to make provisions in legislation on this issue, which is of vital significance to the perfection of international private law. However, there still exist some legislative problems. The legislation does not explicitly put forward the concept of "international private law nature", it only provides that the mandatory provisions shall be applied directly as long as the law of our country has mandatory provisions of the foreign-related civil relations. While the mandatory provisions of our domestic law are not certainly the mandatory provisions on the international private law. The theoretical analysis of the mandatory provisions of private international law mainly involves the definition, nature, comparison with other related concepts, scope definition, by which we can have more profound understanding of the mandatory provisions. For the type of mandatory provisions of private international law includes provisions stipulated in court, the mandatory provisions governing the French mandatory and third mandatory, it is mainly applied by direct applicability or priority applicability and does not exclude the applicability and results of exclusion. China’s international private law nature research starts relatively late, so in theory, legislation and practice are still have some shortcomings, such as systematic research on the applicability mandatory provisions is not enough, definition standard of the mandatory provisions is not clear, the judicial practice and the public order retention and evasion of law position is not clear. In order to perfect the mandatory provisions of Chinese private international law theory, we need start from the aspects on theory, legislation and practice.