Study On The Exceptional Clauses In Private International Law

In 1987,Switzerland formulated and passed the Federal Act about International Private Law.This code not only absorbs classical theories of international private law in two law systems,legislation and reasonable experience in cases,but also develops lots of innovative rules and makes a great contribution to modern development of international private law.It is the first time to put “exception clause” in general rules of Article 15 in this act as the basic system of legal selection and law application.The exception clause authorizes the judge to exclude guide of normal conflict rules under certain condition,so as to realize fairness,justice and rationality of law selection.Such a legislative mode of Swiss international private law is widely used for reference.“Exception clause” is gradually becoming one of unavoidable important issues in the conflict law field.Exception clause balances certainty and flexibility of the international private law and compensates for inherent defects in codification of international private law,showing the corrective function.It has the primary value goal to realize conflict law justice.With the in-depth and extensive participation of China in international civil and commercial communication and influences on assimilation of modern international private law,the author thinks China can learn from practice of using exception clause in Switzerland and endow the judge with limited discretion to exclude improper guide of conflict specifications under the special situations by combining with practice of current legislation and juridical practice in China.In addition to the introduction,this thesis is divided into four parts.Introduction is the foreshadowing for the whole part.In theory,exception clause means that European scholars summarize flexible law selection practice of the judge to cope with rigidness and ossification of traditional law selection as the exception clause of research object in this thesis,so as to achieve a goal of conflict law justice.It is the flexible transformation for conflict specifications.Other parts are stated as follows:In the first part,the author defines exception clause in the international private law.The author uses the narrow concept.Exception clause means flexible transformation for connecting points in conflict specifications within the range of conflict law,showing the corrective function,so as to pursue for value in conflict law justice.Exception clause is featured with dependency on existence of conflict rules and shows applicable subordination and exception.Moreover,it is obviously different from the system behind proper law,including public order and proper law adjustment.In the second part,the author introduces theoretical basis of exception clause in the international private law.This part is focused on result selection theory and legal field selection theory,flexibility and certainty of legal selection,substantial justice and conflict justice and reveals theoretical transition of contemporary international private law.The original idea of exception clause lies in achieving flexibility of legal selection and realizing value pursuit of conflict law justice.It is also one of manifestation for result selection theory.In the third part,the author introduces legislation and application of exception clause in the international private law.By studying legislation of extraterritorial countries,the author introduces limitation and flexibility of exception clause and three legislative modes,including general rules,specificity and compatibility.Afterwards,the author analyzes applicable conditions of exception clause,so as to define required conditions of exception clause and parties' choice of law to exclude passive applicable conditions of exception clause.At last,the author introduces practical application range of exception clause and divides exception clause into general exception clause and special exception clause.Adjustment objects of general exception clause include all conflict rules.As consideration of general exception,it is suitable for all foreign civil and business relationship.Special exception clause adjustment objects refer to conflict rules in some specific fields,so as to realize flexible requirements of legal selection in disputes of some specific fields.In the fourth part,the author analyzes dilemma and outlet of introducing exception clause in China's international private law.This part is the emphasis of thesis.The author firstly introduces legislation and practice of China's international private law and two realistic dilemmas of introducing exception clause in China: on the one hand,China is a civil law country and values certainty and operability of rules.On the other hand,Chinese legislators distrust in the judicial person,so that judge's discretion has more cautious and conservative attitude.However,introducing exception clause is good for solving application dilemma in China's reservation of public order.The author thinks it is extremely flexible to introduce exception clause in China's international private law.Finally,based on practice of China,the author proposes some advice as introducing exception clause to China's international private law: firstly,the compatible legislative mode is used.The semi-open mode is used in legislative contents.Secondly,“exception” in exception clause should be strictly explained in application of juridical practice.“Exception” shows that the court should try to reduce appeal to this mechanism as much as possible.It is impossible to replace the status of traditional conflict rules.In specific operation of exception clause,the judge should insist in “rule-oriented” thought.Discretion of exception clause used by the judge should be limited suitably and occupational quality of the judge should be improved to convoy reasonable application of exception clause.Furthermore,the judicial person should value guide function of international private law's basic theory in practice application of exception clause.