Normalizing The Application Of Reservation Of Public Order In Inter-regional Conflict Of Laws In China

Reservation of public order,an important system in Private International Law,has been widely established in the legislation of various countries.Its function is to protect a country’s important interests,the basic principles of laws and the basic moral concepts,so it is called “safety valve”.It is applied in choice of laws and judicial assistance.Considering the great differences in legal systems among four legal districts of China,it is necessary to apply this system in inter-regional conflict of laws to protect the interests of each jurisdiction.As for the application of this system,this thesis focuses on the judicial practices of mainland courts dealing with inter-regional conflicts of laws and puts forward some application suggestions for the existing problems.This thesis consists of five parts.Part One is an introduction,introducing the research background and purpose,research status and main research methods at home and abroad.Part Two involves the characteristics of Chinese inter-regional conflict of laws,the legal provisions on this system in Chinese mainland and the necessity of its application in Chinese inter-regional conflict of laws.Part Three reveals the judicial status quo of the system in Chinese mainland and summarizes its non-normative applications: use of legal term that does not conform to legal provisions,courts’ inconsistent application attitudes,unclear application standards,confusing distinction between it and other systems like evasion of law,simplified reasoning and courts’ diverse interpretation of violation of public interests.Part Four introduces some extraterritorial experience of its application.The “Full Faith and Credit Clause” and “Due Process Clause” in US Constitution coordinate the interstate conflict of laws,and the Supreme Court of United States has supreme jurisdiction over the application of laws and recognition and enforcement of other states’ judgments.In Germany legislation,this system has clear connotation and application standard,and the courts analyze the conflicting interests while applying it.Part Five puts forward suggestions on normative application: to use legal term conforming to legal provisions,to restrict applying it,to clarify applying standard——“Theory of Consequence” of “Theory of Objectivity”,to distinguish it and other systems like evasion of law and mandatory rules,to accurately ascertain the laws of another legal district,to fully construe the legitimacy of excluding the application of the laws of foreign jurisdiction and clearly define the connotation of public order in a specific case.