The Application Of Mandatory Rules Of Law In Foreign Labor Disputes

Foreign labor disputes need to be considered in terms of safeguarding public welfare elements and the nature of foreign affairs compared with foreign-related civil disputes and domestic labor disputes.Therefore,the legislative regulation must take both of them into consideration.Out of the guarantee of the elements of public welfare,article 10 of ?Interpretation I of Several Issues <concerning the Application of the Application of Law to Foreign-related Civil Relations Act>? defined "domestic laws and regulations involving the protection of the rights and interests of workers" as the mandatory rules which are written in Article 4 of ?the Law of the Application of Law to the Foreign-related Civil Relations Act?.So that,the domestic laws and regulations involving the protection of the rights and interests of workers have the privilege to exclude conflict rules and the autonomy of the parties.However,the expression "involving the protection of the rights and interests of workers" is too broad and the courts often apply the mandatory rules of labor law to a large extent,so that there is no living space for conflict rules and autonomy of the parties.In order to balance the public welfare elements and foreign nature of foreign labor disputes,this paper divides domestic labor law laws and regulations into four different types: public welfare mandatory rules,protective mandatory rules,managerial mandatory rules and voluntary rules within the existing legal framework.Public welfare mandatory rules should be recognized as the international mandatory rules.Protective mandatory rules can not be recognized as international mandatory rules in principle,but still should protect workers in every single case according to the principle of most beneficial to workers.Administrative mandatory rules and the voluntary rules can not be recognized as international mandatory rules.