Application Of Mandatory Provisions In International Private Law

In the system of international private law, the mandatory provision is a new theory. Originally, mandatory conflict as an exception to apply. However, due to the economic crisis and the development of welfare state, the government began to intervene social and economic life, which facilitated the drafting of mandatory provisions to generate major public interest and the safeguard of nation and society. Driven by the new European wave of unilateralism in the international arena, the mandatory provision were carried out by “the Vienna Convention on the Law of Treaties”?“the Rome Convention”?“Rome I” and “PICC”, and many countries have legislation to determine it. Also both China's “People's Republic of China foreign-related civil legal relations applicable law” and its interpretation had ruled that. Throughout today's system of private international law, the mandatory provision has become an important way to solve the foreign civil and commercial relations. Mandatory provisions are related to the vital interests of the country's political?social and economic. which is different from the traditional method of private international law, it can be directly applicable without invoking to exclude autonomy and the rules of conflict parties. However, due to its characteristic problems, it isn't difficult to find that there are many uncertainties in the applicable of theory and practice. This article will analysis the relevant theory and practice of international mandatory provisions to improve our country's rules in the view of the applicable of mandatory provisions.The first part of this article throughout the time dimension of history to making a mandatory order, will summarize the germination?emergence and development process,to revealing the nature of mandatory provisions. Then in conjunction with the viewpoints of scholars on the definition and mandatory title, this article summarized the definition of mandatory provisions and compared the difference of related concepts, to paving the way for expounding the application of the mandatory provisions.The second part is intended to expound the precondition of applying the mandatory rule. This part is going to define the mandatory provisions through the criteria of subjective and objective, it should reveal the value of the public on the subjective, and have substantial contents and unilateralism features on the objective.The third part discussed the fields of mandatory provisions. To undertake this part of theabove, it defines the scope of mandatory provisions from the macro. Regarding mandatory provision as a general principle significance in the field of private international law, but it emphasized that the mandatory provisions mainly focused on economic law sector, few in the private sector.The fourth part is mainly related to the origin of the mandatory provisions. discoursing the way of applying mandatory provisions the forum State, the applicable law and third countries, as well as the order of the three ways. It elaborated the priority of applying the mandatory provisions of the forum State, and for the latter two should be non-discriminatory applied. Then it should build a complete system of mandatory provisions.The fifth part of this paper is about how to use these theoretical results to complete the mandatory provisions of private international law legislation and practice of China. We should distinguish the international mandatory provisions and national mandatory provisions?improve the subjective criteria of mandatory provisions?establish a criteria combining both the subjective and objective. Last we will built a applicable system of the forum State, the applicable law and third countries Trinity mandatory provisions, improving the single State of applying mandatory provisions of forum State.