Introduction

Ordre public (public order) is one of the most ancient doctrines in the conflict of laws.In accordance with this doctrine,a foreign law that is otherwise applicable is disregarded if its application would violate some fundamental interest,basic policy,general principle of justice,or prevailing concept of good morals in the forum.This notion,so far as we can trace its beginning,surfaced during the late Middle Ages in the works of the great Bartolus (1314-1357) who distinguished the “favorable” from “odious” statutes.1 Later on,many scholars such as Huber (1636-1694),Story (1802-1855),Savigny (1779-1861) and Mancini (1817-1888) built upon such a distinction with variations of their own,ushering in a new doctrine of considerable importance.It bears mentioning that in general,the civil law doctrine of ordre public has assumed more prominence than its corresponding doctrine of public policy in the laws of the Anglo-American family,since the former is broader in scope than the latter.^[1]

Serving as a corrective measure of last resort,the doctrine of ordre public is of great necessity in guarding against injurious foreign rules,maintaining the stability of local law,and protecting the public welfare of the forum.As a result,this doctrine has been vividly compared to a “safety valve.”2 However,it is worth emphasizing that the doctrine suffers from vagueness,amorphousness,and uncertainty in application,so that no attempt to define the doctrine precisely has ever succeeded.Legal scholars have acknowledged that: “[T]he danger of a doctrine so vague as this is that it may be interpreted to embrace such a multitude of domestic rules as to provide a fatally easy excuse for the application of the law of the forum and thus to defeat the underlying purpose of private international law.”3 For this reason,the doctrine has also been compared to “a very unruly horse and once you get astride it,you never know where it will carry you.”4

Furthermore,the application of the doctrine is of an inconstant and evolving nature,changing as society and general notions of justice change.5 Whether a foreign rule is repugnant to the ordre public is an issue to be determined by the criteria of the law of the forum; therefore,there is no uniform measure of ordre public for all times and for all countries.

Nonetheless,the doctrine has edged its way into modern legal theory,6 at present plays an active and important role in private international law,and is invoked in conflict of law cases by most modern states.As one scholar pointed out,it is hard to find a legal doctrine such as ordre public,which has endured such extensive criticism and nonetheless survived.7(https://www.daowen.com)

China has consistently adopted an affirmative attitude towards the application of the doctrine of ordre public.Since the founding of the People’s Republic of China in 1949,the doctrine has been reflected in the relevant legislation and is invoked occasionally in international civil litigation,otherwise known in China as “civil cases involving foreign elements.”8 Moreover,Chinese scholars of private international law have proposed a reasonably complete theoretical scheme for the doctrine.It is worth noticing that China boasts its own unique characteristics as to the application of the doctrine of ordre public in the areas of legislation,judicial practice and theory when compared with such application in foreign countries.

However,to many foreigners,the application and development of the doctrine of ordre public in China remain mysterious and delicate despite the fact that China has been opening up to the outside world for more than four decades and the presence of foreign business companies in China has increased by leaps and bounds.In this light,a thorough introduction and systematic review of the doctrine in China’s private international law is both beneficial and necessary.

The purpose of this section is two-fold.First,it provides an introduction to the application and development of the doctrine of ordre public in China’s private international law from three perspectives,i.e.,from that of legislation,judicial practice and theory.Second,after summarizing problems concerning the doctrine of ordre public which currently exist in Chinese legislation and judicial practice,it puts forward suggestions for improvement.