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Study On Problem Of “directly Applicable Law" In Private International Law

Posted on:2016-09-26Degree:MasterType:Thesis
Country:ChinaCandidate:W C LiuFull Text:PDF
GTID:2296330464460498Subject:Law
Abstract/Summary:PDF Full Text Request
The theory of “Directly applicable law” has been formally put forward for a long time, which is still one of the most controversial theories in private international law result of various international scholars illustrate their own opinions one after another from different aspects to constantly and unceasing updating this theory. This theory was born under the background of the prevailing state interventionism, whose purpose was to maintain the vital interests of the state and society. In theory, the controversies of “directly applicable law” focus on definition, connotation, nature and the judgment standard, such as in the appoint of definition, mainly involving disputes between direct adjustment and indirect adjustment, public law and private law, conflict rules and substantive rules. The research of “directly applicable law” started relatively late in china, the mandatory provisions of the directly applicability has been made clear in the “law for foreign-related civil relations law” article fourth which passed in 2010, which marked “directly applicable law” had been officially established in China’s legislation, and of course, the mandatory provisions here is “directly applicable law” which will be mainly discussed in this paper. However, through research and analysis of “directly applicable law” in China’s legislation and judicial practice, it is not difficult to find that there are many questions remain to be further discussed and solved, such as mandatory provisions in domestic law is not absolutely “directly applicable law”, the standard of mandatory requirements definition is unclear, contradictions between “foreign-related civil relations law” and judicial interpretation provisions, whether received the recognition of foreign “directly applicable law” from the domestic is not clear and the problem of the application of “directly applicable law” in Hong Kong, Macao and Taiwan regions is unclear under the “one country, two systems”.In this paper, the first part is about the discussion of the basic theory, which mainly involves the historical origin, theoretical roots, meaning extension and nature of “directly applicable law”. In order to have a deeper interpretation of “directly applicable law”, the second part is about clarification with other related theories, including the relationship between the principle of autonomy and it, and the difference between unilateral conflict rules, public order, the evasion of law and it. The third part is the evolution and defects of “directly applicable law” in the development of legislation, and its application and existing problems in judicial in China. The fourth part is priority among priorities of this paper, it is on the basis of the integration of thethesis stated above and puts forward to how to improve the “directly applicable law” in China’s legislative provisions and operation in practice. Of course, in order to make “directly applicable law” to be more perfect in the field of China’s law, we should stay in the premise of China’s national conditions, follow the trend of the private international law, to make China’s “directly applicable law” really play a role of safeguarding the vital interests of country and society.
Keywords/Search Tags:China, Mandatory, Directly Applicable Law, Improve
PDF Full Text Request
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