強制性規定適用規範：全球立法模式與我國適用現狀

Global Legislative Models in the Application of Overriding Mandatory Rules and its Judicial Application in China

比較全球61個強制性規定適用規範的法條發現，法院地強制性規定適用規範和第三國強制性規定適用規範的立法模式完全不同。實證分析我國法院適用《法律適用法》第4條法院地強制性規定適用規範的167份裁判文書發現，部分法院將適用前提異化為涉外民事關係、適用方法異化為單獨引用該條、適用結果異化為準據法是中國法。為此立法上應界定第4條中的強制性規定，並適時引入第三國強制性規定適用規範；司法上應將第4條的適用前提糾為強制性規定、適用方法糾為直接適用、適用結果糾為涉外民事法律行為效力的評價。

Overriding mandatory rules in Private International Law protects public interests of a domestic country, especially for political, social and economic interest. From the perspective of the global world, it can be found 14 International Conventions and 43 Domestic Laws provide 61 provisions of overriding mandatory rules. After comparing these 61 provisions, the article points out the different legislative patterns between overriding mandatory rules of the forum and overriding mandatory rules of the third country. Regarding the former one, the requirement of its application is to decide which domestic rules can be overriding mandatory rules. Meanwhile, the courts have the responsibility to apply these overriding mandatory rules directly without considering any conflict of laws, and the method of such direct application in worldwide legislation can be divided into mode of active generalization and mode of negative exception. Regarding the latter one, the requirement of its application must be satisfied the needs of space limitations of the third countries, such as the third countries have close connections with the cases. Also, in considering whether to give effect to these overriding mandatory rules of third countries, the courts have the discretion to decide by taking into account single or multiple factors, such as their nature and purpose and the consequences of their application or non-application. Then, from the perspective of judicial practice in China, empirical analysing 167 judgements which applied Article 4 overriding mandatory rules of the forum in Law of the People's Republic of China on Choice of Law for Foreign-related Civil Relationships, it can be found that some Chinese courts wrongly changed the application premise into foreign civil relationship, application method into citing Article 4 individually, application consequence into that applicable law is Chinese law. The main contributing factor of the above-mentioned three kinds of judicial aberrance is that some Chinese courts have ignored the two special characters of Article 4: one is the content orientation of mandatory rules in Chinese laws and administrative regulations, the other is the direct application of these mandatory rules. Therefore, on the background of taking a coordinated approach to the rule of law at home and in matters involving foreign parties, the overriding mandatory rules in China should be improved and be perfected in two aspects. Regarding legislation, Article 4 in Law of the People's Republic of China on Choice of Law for Foreign-related Civil Relationships can be redesigned into three sections. Paragraph 1, the definition of overriding mandatory rules can refer to the Article 8 in Interpretations of the Supreme People's Court on Several Issues Concerning Application of the Law of the People's Republic of China on Choice of Law for Foreign-Related Civil Relationships; Paragraph 2, the direct application of Chinese overriding mandatory rules; Paragraph 3, the application of overriding mandatory rules of third countries. Considering past legislation in China without any provisions concerning overriding mandatory rules of third countries, its transplantation should be moderate and progressive if we want to build overriding mandatory rules of third countries with Chinese characteristic. Regarding judicial practice, it is necessary for Chinese courts to apply Article 4 in three ways. First, to rectify the application premise of Article 4 into overriding mandatory rules in Chinese laws and administrative regulations; Second, to change the wrong application method of Article 4 into direct application; Third, to change the application result of Article 4 into assessing the effectiveness of specific foreign-related civil juristic acts.