Exceptions To The Principle Of Autonomy Of Will

< p > < strong > (1 < a href= "http://www.91se91.com/news/index_c.asp >") mandatory < /a > rule < /strong > /p >

The fourth provision of < < p > law applicable law "stipulates that" People's Republic of China law has mandatory provisions on foreign related civil relations, and the mandatory provisions shall apply directly. "

This provision is the first appearance of mandatory rules in China's application of laws regulating foreign related civil relations. According to the intention of this article, we can generally define mandatory rules as clearly stipulated in domestic laws that certain types of legal relations should be directly applicable to a certain law, do not allow the parties to choose, and the parties can not exclude the application by agreement. Judges do not have to apply the laws directly applicable to the rules of conflict rules in the process of hearing cases.

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< p > in China's legislation on the application of foreign contractual contracts, the mandatory rules are mainly manifested in two forms: < /p >

< p > 1 is the direct regulation derived from the law.

如《＜a href="http://www.91se91.com/news/index_c.asp"＞合同法＜/a＞》第126條第2款規定，“在中華人民共和國境內履行的中外合資經營企業合同、中外合作經營企業合同、中外合作勘探開發自然資源合同，適用中華人民共和國法律”.對于強制適用我國法律的合同種類，《法律適用規定》進行了擴大，其第8條規定除上述三類合同外，還包括在我國領域內履行的中外合資經營企業、中外合作經營企業、外商獨資企業股份轉讓合同;外國自然人、法人或者其他組織承包經營在我國領域內設立的中外合資經營企業、中外合作經營企業的合同;外國自然人、法人或者其他組織購買我國領域內的非外商投資企業股東的股權的合同;外國自然人、法人或者其他組織認購我國領域內的非外商投資有限責任公司或者股份有限公司增資的合同;外國自然人、法人或者其他組織購買我國領域內的非外商

Contracts for investment in enterprises and other contracts in China's laws should be applied in accordance with the provisions of laws and administrative regulations.

In addition, according to the tenth second clauses of < < a href= "http://www.91se91.com/news/index_c.asp > < < /a > >, the foreign laws applicable to foreign contractual contracts can not be identified or the laws of the state do not provide for the application of our laws.

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< p > two is based on the need for special protection of the national economic order or certain interests, which is determined by the people's court.

For example, the tenth provision of interpretation of the law applicable law stipulates that "one of the following circumstances involves the public interest of the People's Republic of China society and the provisions of the law and administrative law applicable directly to the foreign-related civil relations that the parties can not exclude from application and do not need to be guided by the conflict rules. The people's court shall recognize that the mandatory provisions of article fourth of the law applicable to foreign-related civil relations shall be stipulated: (1) protection of the rights and interests of workers; (two) food or public health safety; (three) environmental safety; (four) financial security related to foreign exchange control; (five) involving antitrust and anti-dumping; and (six) other circumstances that should be identified as mandatory provisions."

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< p > < strong > (2) public order reservation system < /strong > < /p >

< p > the so-called "public order retention system" refers to a reservation system that a court of a country should exclude when it applies to foreign laws in accordance with the conflict rules, because its application conflicts with the fundamental interests of the country of the court, basic policies, basic concepts of morality or the basic principles of law.

The French civil code was first established in the form of legislation in 1804, and has now become a universally recognized principle in private international law.

China has always held a positive attitude towards the reservation system of public order.

The 150th provision of the general principles of the civil law stipulates that "in accordance with the provisions of this chapter, the application of foreign laws or international practices shall not contravene the public interests of People's Republic of China."

The fifth provision of the law applicable law stipulates that "the application of foreign laws will harm the public interests of People's Republic of China and apply People's Republic of China law."

Therefore, as an exceptional case, the public order reservation system, like mandatory rules, takes precedence over conflict rules in specific situations, thus limiting the specific application of the principle of autonomy of interests in the field of law application of foreign contracts.

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