Mandatory Rules In Private International Law And Its Application In China

In 2010, China issued its private international law which named Statute on the Application of Laws to Civil Relationships involving Foreign Elements of the People’s Republic of China(hereinafter Applicable Law), and article 4 of the Applicable Law is the first time that regulate mandatory rules in China’s legislation. Since then, the problem of mandatory rules in private international law has become a hot topic in private international law realm and many scholars talk about it. Although the theory of mandatory rules is not a brand new concept in the field of private international law, the scholars still have different views for this issue.In China, although this system was established in our private international law, compared with European countries, this regulation is not mature enough in both legislation and judicial practice. With the rapid development of international economy in recent years, China’s external exchanges on economy and trade are increasing, the civil and commercial disputes which involve foreign elements are rising too. Therefore, the frequency of the application of the mandatory rules in foreign-related civil and commercial trials has increased. But among these trails, the unreasonable application of mandatory rules always happened. This phenomenon is not conducive to the protection of China’s public order, to a certain extent, it also affects China’s external contacts in civil and commercial fields. Thus, a comprehensive study on the application of the mandatory rules in private international law is very essential.In 2013, the Supreme People’s Court’ Explanation of Some Issues of the Applicable Law I(hereinafter Explanation I) came into force, article 10 gives mandatory rules a general description by the way of incomplete enumeration. Article 10 of Explanation I could be a supplement and perfection of article 4 of Applicable Law and resolved some problems in the future juridical practice. But compare with European countries’ relative perfect mechanism of mandatory rules in private international law, our country’s regulations about mandatory rules have not yet formed a sound system, such as no regulation about foreign country mandatory rules and lack of the regulations of protective mandatory rules for the protection of the weak parties’ interests, etc. This dissertation through analysis of the relevant international treaties and other countries’ legislation and judicial practice of mandatory rules, base on the experience of other countries and combine it with China’s actual situation, trying to find answers on how to make this system work well in China’s foreign civil and commercial relationships and maximize the effectiveness of private international law in China.This paper mainly discusses and analyzes the issues in three parts:The first part is mainly to define the concept of mandatory rules. This part firstly talks about the origin of mandatory rules in private international law theory, discusses the historical formation process of this theory. Next, because the concept of mandatory rules in different areas have different understanding and function, thus need to orientate its meaning in the private international law. Finally, the mandatory rules in private international law and the system of public order, evasion of law system and directly applicable law are all the private international law system which used to exclude the application of foreign laws, so there are some similarities in these systems and easy to cause misuse. Therefore, distinguish these similar theories from the theoretical level is helpful to the right application of mandatory rules.The second part discusses the development of mandatory rules in international legislation and juridical practice. First of all, it introduces the mandatory rules’ development from the most representative European Community Convention on the Law Applicable to the Contractual Obligations in 1980(hereafter Rome Convention) to the later Regulation No. 593/2008 on the Law Applicable to Contract Obligations in 2008(hereinafter Roman I Regulations), then it discusses the mandatory rules’ development in international legislation. The Rome Convention and the Roman I Regulations are two international treaties that give mandatory rules a more systematic and more comprehensive provisions, it became a reference for many countries’ domestic legislation, thus the two treaties play an important role in the development of mandatory rules in international private law. Second, through the analysis and comparison of domestic legislations of Netherlands, Canada, Romania as well as other countries and regions, we can summed up two development trends of the mandatory rules in private international law, which are the establishment of mandatory rules of lex fori and the recognition of mandatory rules in foreign countries. Finally, combining the judicial practice of the international community to illustrate the mandatory rules’ applications and evolutions in the specific cases in international private law.The third part based on the current situation of China and analyzes the applicable conditions of mandatory rules in the Chinese private international law, and it gives some suggestions to improve the present situation. To begin with, this paper analyses the article 4 of the Applicable Law and article 10 of Explanation I, and then points out that the type of our country’s mandatory rules application is mandatory rules of lex fori, meanwhile, the applicable way of mandatory rules has transferred from indirect way to direct way. Then, this paper collects some relevant cases that since the article 4 of the Applicable Law came into force and through these cases to analyze the application of mandatory rules in Chinese private international law. At last, based on the analysis of both legislation and practice, it gives some suggestions to promote the applicable situation, such as learn from the legislative model of the Rome convention or Roman I Regulations to classify mandatory rules in private international law, making protective mandatory rules to protect the interests of the weak parties, etc.