The Mandatory Provisions Defined In The Private International Law, And A Review Of The Relevant Provisions Of Our Country

The mandatory provisions in private international law is mainly refers to the substantial law in Foreign-related civil and commercial relationships,which has mandatory effect for the interests (realization) of the states, society and economics. The forth article of China’s Law of Law Application of Foreign Civil Relations determines the theory of mandatory provisions from the point of application of law by the way of legislation for first time, but the application in judicial practice,the mandatory still exist many problems. So the tenth article of the foreign-related civil relationship (a) solved the problem of the operational problems about mandatory provisions by the way of incomplete list, which is an important development of mandatory provisions theory in private international law. However,how to clearly define the mandatory provisions of private international law, particularly the concept of mandatory provisions,the scopes of the problem and the identified standards have not a unified understanding yet. The concept of mandatory provisions gradually formed by the influence of the doctrine and theory study in the domestic and private international law. The mandatory provision in private international law refers to substantial law which for the major interests of a state in fields like politics, economics, society and culture etc. With no necessity to cite the conflict rules and applies directly to the foreign-related civil and commercial cases. And two characters of mandatory provision be concluded:direct applicability, public welfare engaged.In addition, in order to more clearly define the concept of mandatory provisions, it is necessary to distinguish between mandatory provisions and principle of party autonomy, public order and the legal system to retain the relationship between avoidance system. For the study of the scope of mandatory provisions, there are some theoretical basis. The scope of the provisions of mandatory provisions in the relevant national legislation and judicial practice are not the same. For the study of the standard in mandatory provisions, most study based largely on the theory that a compulsory requirement should be limited to the areas, that a country’s national economy is closely related to public policy, such as the field of foreign exchange management, the protection of labor rights and environmental protection; relevant national legislation and judicial practice of the mandatory provisions of the provisions of that standard is different, such as Germany, France, UK, Holland, etc. However, these countries have different levels of the factors involved in the field of public made mandatory provisions. Given China’s Law of foreign-related civil relationship Article IV and application of Law of foreign-related civil relationship(NO.1)Article10and other relevant laws and regulations are made clear to the mandatory provisions in the legislation, referring to the two impact of the mandatory provisions of the law on the scope and standards, our results in the theory and practice of the mandatory provisions of the scope and standards for determining the proper position in order to properly define the mandatory provisions of private international law.