The Justification Of The Relationship Between Choice-of-Law Rule And Overriding Mandatory Rules In Employment Contracts

What is the relationship between the choice-of-law rule and the overriding mandatory rules in employment contracts?Different courts have different decisions on the problem.The main reason for the appearance is that current rules of the affirmation criterions and the conditions for applying of the overriding mandatory rules in employment contracts are inexplicit.Justices can’t identify what rules in labor law are the overriding mandatory rules and there is no explicit applicable law for applying those rules.The essay comprehends the current rules from the functionalism perspective to find out the choice-of-law rule and the overriding mandatory rules’ legislative purposes in employment contracts.Comparing internal theories,legislations and decisions with those in Europe and America to utilize the advantage of the latter,the essay is aimed at clarifying the relationship between the choice-of-law rule and the overriding mandatory rules in employment contracts.Chapter Ⅰ puts forward that the traditional rules of conflict law can’t protect the weaker party of employment contracts because of it’s neutrality.The actual conflict of laws in employment contracts is one of the substantiation of the general choice-of-law rule for contracts.In order to maintain the balance of the interests of employee and employer,it has achieved substantiation through the prohibition of party autonomy and being result-oriented.Employment contracts probably relate to social public interests and primary values of society;the choice-of-law rule has limitation to make them come true.Chapter Ⅱ demonstrates that the overriding mandatory rules play an important role in maintaining the fundamental policies and primary values of society through the prohibition of party autonomy and the immediate application of the overriding mandatory rules irrespective of the law govern the employment contract.Then through making use of teleology interpretation and combining the comparative results of domestic and foreign theories,legislation and judicial practice,it concludes the objective criterion and the formal criterion which overriding mandatory rules are qualified.And it proves the condition for application of overriding mandatory rules.Apart from these,it is essential to realize that the overriding mandatory rules are concentrated on the interest of state going beyond the interests of parties,which makes up for the choice-of-law rule’s limitation.Chapter Ⅲ makes clear that the relationship can be ascertained by distinguishing the rules’ legislative purposes.It advances two approaches to guide the judicial practice of identifying the relationship.The judicial interpretation’s goal is to make the criteria for identification and the application requirement of overriding mandatory rules clear.The guiding cases institution is to insure the coherence of decisions and instruct the judges to use case-by-case analysis approach to identify the overriding mandatory rules in specific case and what are social public interests and labors’ interests.