The Judiciary Application Of Loi D’application Imm(?)diate In China

The system of "Loi D’application Immédiate" is a unique system in private international law,which stipulates the direct application of the mandatory rules of validity in foreign-related civil and commercial cases,and has been widely concerned in the theory and practice of private international law.This paper will discuss the current situation and problems of the judicial application of the "Loi D’application Immédiate" system in China.This paper consists of three parts with logical relationship:The first part discusses the "Loi D’application Immédiate" system from the perspective of conflict law.Based on the demand of adjusting foreign-related civil and commercial legal relations,the proportion of the application of mandatory rules is increasing.And the necessity of the application of mandatory rules is becoming increasingly prominent.The "Loi D’application Immédiate" system and the conflict rules constitute the modern conflict law system.There are quite a lot differences from each other in the application.Moreover,the "Loi D’application Immédiate" system is not unilateral.And it should be fully considered that if it is possible to apply the compulsory rules by foreign country or a third country.This system has a clear boundary with other systems of conflict law.It is essentially different from reservation of public order system,evasion of law system and unilateral conflict rules.The second part analyzes the judicial status and the problems of the "Loi D’application Immédiate" system in China.China’s law and judicial interpretation of the "Loi D’application Immédiate" system defines the application conditions and the protected targets,which also provides the judges with a certain degree of discretion.Recently,the vast majority of cases associated with the system,most of them are guarantees cases and the labor contract disputes.When it comes the situation of these two kinds of cases,the court has a strong will on applying the "Loi D’application Immédiate" system.Meanwhile,in other kinds of cases,the court cannot distinguish the application of the "Loi D’application Immédiate" system fron the application of conflict rues sometime.The judicial application of "Loi D’application Immédiate" system in China may have some problems.To the courts,they may misunderstand the application of directly applicable mandatory rules.There are also some mixtures between the system of "Loi D’application Immédiate" and other systems of private international law.The relationship between the the system of "Loi D’application Immédiate" and the conflict rules may not be so clear that the court can differentiate easily.The third part discusses the solutions to the problems existing in the judicial application of the "Loi D’application Immédiate" system in China.The mandatory rules that can be directly applied in foreign-related civil and commercial cases are based on the purpose of protecting public order and should be of the nature of public law and of validity.Based on the application path and its own nature,the system of "Loi D’application Immédiate" is applied in preference to the reservation of public order system and the evasion of law system,regarding of the application conditions or the order of application.In cases of foreign-related labor contract disputes,it is necessary to consider the possibility of the application of bilateral conflict rules.It is necessary to respect the autonomy of the parties and protect the rights and interests of the workers.In addition,it is also necessary to make it clear that the direct application of mandatory rules is not related to the guidance of the conflict rules.