Studyonthe Mandatory Rules In International Private Law

Start from year 1958 when the mandatory rules in international private law have been theorized and conceptualized, this theory has developing almost 60 years as so far. But,it has collected so many expectations of scholars and jurors since the day this theory was proposed. It is linking with the revival of unilateralism, it is a breakup to traditional choice-of law approaches in international private law, as a result, it bearing the emerged discussion between scholars. At the same time, it also triggers a argument about the Functionalism among scholars in practice, making them have to notice the national interests and social policies behind those rules.So,mandatory rules as a new choice-of-law approach in international private law,it is a system that practice comes before theory, meanwhile, it own a color of unilateralism and functionalism. Consequently, no matter in theory or in practice, mandatory rules have a great value and significance in further study.Following the booming discussion around the world,our country’s scholars introduced this theory in 1980 s, so there have different studies about this theory among different scholars, like Mr Li Haopei,Professor Han Depei and Xiao Yongping, and so on. Till October 2011, the《The People’s Republic of China Applicable Law of Foreign-Related Civil Relationship》was issued, mandatory rules made that the theory in harmony with the legislation in our country.But before this,many countries in world have already carried out the academic and legislative work about mandatory rules.As a result, in this paper, it will have theoretical analysis, as the analysis for mandatory rules’ concept and nature, and the comparative analysis between mandatory rules and other related system on the basic of its fundamental concept; It also have practical study under the guidance of the theoretical research, the paper list some foreign judicial cases, and based on this, trying to explore the application in practice about mandatory rules.The purpose and the innovation of this paper is that, after analysis the problems of mandatory rules in theory and practice, using the analysis results to direct our country’s legislation and judicial, and achieve the goals that to perfect the development prospect about this theory in our country.This paper combines the methods which include the theoretical analysis, case analysis and comparative analysis.On the base of fundamental theory,aiming at the present application situation and problems in the practice of mandatory rules,by listing some cases to definite the specification standards and application scope of these rules.Also,through the comparative analysis, it cleared the application order between the mandatory rules and the evasion of law,and the reservation of public order,and so on.By doing this, we proved the independent existence of mandatory rules.After all this analysis,this paper came out a conclusion, which is, mandatory rules break up the limit of traditional choice-of-law approaches in a totally new and different mode,it is existing extensively and developing strongly in a more conformed way to satisfy the national requirements.