Legislative Development of the Doctrine of Ordre...
The past four decades have witnessed an amazing acceleration in the rate of,and significant progress in the quality of,legislation in China.Nevertheless,there is a long way to go towards accomplishing the task of building a modern legal system.The current crossroads at which China finds itself is graphically illuminated by the legislative development of the doctrine of ordre public.
2.1 The Earliest Legislation Invoking the Doctrine of Ordre Public
The earliest legislation concerning the doctrine of ordre public can be dated back as far as the year 1950,when the Legislative Committee of the Central People’s Government issued the “Opinions on the Matrimonial Issues between Chinese Citizens and Foreign Residents as well as Those between Foreign Residents.”[2]Pursuant to this Opinion,when dealing with marriages or divorces falling into these categories,marriage registration authorities should give priority to Chinese laws,with due consideration to lex patriae for the purpose of avoiding “limping marriages.” Nevertheless,it has been emphasized that lex patriae should be applied only to the extent that they are not incompatible with the ordre public,public interests,and the current basic policies of the State.This rule is generally regarded as the first piece of legislation invoking the doctrine of ordre public in the history of the People’s Republic of China.9
2.2 The Doctrine’s Reflection in China’s Civil Procedure Law
Adopted on March 8,1982,the Civil Procedure Act (for Trial Implementation) of the People’s Republic of China reflected the doctrine of ordre public in a formal manner,providing in Paragraph 2 of Article 202 as follows:
If the assistance requested by a foreign court violates the sovereignty or security of the People’s Republic of China,the People’s Court shall turn down the request.If the request is out of the limits of the functions and powers of the People’s Court,the People’s Court shall return the request to the foreign court with explanations.
Moreover,Article 204 stated that:
The People’s Court of the People’s Republic of China shall examine,in accordance with the international treaties which China has concluded or to which China is a party or according to the principle of mutual reciprocity,the request for enforcement of a determinate judgment or ruling which a foreign court has rendered.Where it is found to be not in contravention of the basic principles of the laws of the People’s Republic of China,or China’s national and social interests,the People’s Court shall acknowledge its validity by a ruling and implement it according to the procedure specified by this law.Otherwise,the request should be returned to the foreign court.
Promulgated on April 9,1991,revised on October 28,2007 and August 31,2012 respectively,the Civil Procedure Law of the People’s Republic of China supercedes the above legislation,also stipulating to the ordre public reservation rules,as provided in Paragraph 2 of Article 276:
The People’s Court shall not render the assistance requested by a foreign court,if it impairs the sovereignty,security or social and public interest of the People’s Republic of China.
Furthermore,Article 282 stipulates that:
In the case of an application or request for recognition and enforcement of a legally effective judgment or written order of a foreign court,the People’s Court shall,after examining it in accordance with the international treaties concluded or acceded to by the People’s Republic of China or with the principle of reciprocity and arriving at the conclusion that it does not contradict the basic principles of the People’s Republic of China nor violates state sovereignty,security and social and public interests of the country,recognize the validity of the judgment or written order and,if requested,issue a writ of execution to enforce it in accordance with the relevant provisions of this Law; if the application or request contradicts the basic principles of the law of the People’s Republic of China or violates state sovereignty,security and socio-public interests of the country,the People’s Court should not recognize and enforce it.
The above provisions embody the doctrine’s reflection in the civil procedure law of China.[3]A careful comparison between the earlier and later pieces of legislation will reveal some progress in technique,namely,a substitution of more formal and concrete legal terms for the informal verbiage of the preceding legislation.However,the common ground underlying both versions of the legislation is the fact that the doctrine remains cloaked in a somewhat nebulous haze,the term “ordre public” never explicitly manifesting itself in either provision,but words like “social interests” or “socio-public interests” appearing in its stead.Thus it can be found that this represents a shift merely in terminology rather than in actual substance.(https://www.daowen.com)
2.3 The Doctrine’s Reflection in General Principles of the Civil Law
What merits particularly strong emphasis is the ordre public reservation rule prescribed by the General Principles of the Civil Law of the People’s Republic of China (hereinafter referred to as the “GPCL”),insofar as it is with this rule that we encounter the first elaborate expression of the doctrine of ordre public within China’s private international law.The GPCL was adopted at the Fourth Session of the Sixth National People’s Congress on April 12,1986,coming into force on January 1,1987.It assumed a prominent role in the area of civil law in China until the implementation of the Civil Code in 2021.Though it was replaced by the Civil code,the author believes that it is necessary to review it because much can be learned from a post mortem examination.Structurally,the GPCL has devoted an entire chapter to regulating the conflict of laws (i.e.,Chapter VIII,Application of Law in Civil Relations with Foreigners),where the doctrine of ordre public is embodied.Article 150 provides that:
The application of foreign laws or international practice in accordance with the provisions of this Chapter shall in no way violate the socio-public interests of the People’s Republic of China.
Additionally,the Maritime Act of the People’s Republic of China,effective as of July 1,1993,and the Civil Aviation Act,effective as of March 1,1996,contained verbatim the very provision noted above.
This redundancy indicates that there is a common thread running through the doctrine in terms of these laws,which can be analyzed as follows:
In the first place,it is not fully clear whether there is a distinction between the foreign rule itself,on the one hand,and the outcome of its application on the other.That is to say,one can hardly tell whether a foreign law should be excluded only under circumstances in which the effect of its application is contrary to China’s ordre public.
Second and most striking,the ordre public reservation is targeted not only at foreign laws but also at international practice,which is a phenomenon without parallel in the laws of any other countries thus far.
Last but not least,the wording of the doctrine remains as obscure as in the other laws mentioned above.
Overall,the doctrine of ordre public has been affirmatively adopted in significant measure in the legislation of China,including substantive law,procedural law and conflict of laws.Nonetheless,the doctrine appears shrouded beneath a somewhat misty veil,its wording neither precise nor unifying.Moreover,there are various problems in the legislation concerning the doctrine,which will be discussed in more detail infra.
2.4 The Doctrine’s Reflection in the Conflicts Act of 2010
On October 28,2010,the Standing Committee of the Eleventh National People’s Congress adopted China’s first statute on Conflicts Law—“Act on the Application of Laws over Foreign-related Civil Relationships”(hereinafter referred to as the Conflicts Act).10 Article 5 of the Conflicts Act contains an article incorporating the doctrine of ordre public which provides that:
The application of a foreign law shall be excluded if such application is offensive to the socio-public interests of the PRC,and the law of the PRC shall apply.
A close reading of the above article will manifest that the doctrine reflected in the Conflicts Act has made some modifications.First,international practice are no longer the targets of the doctrine; second,the above article makes it clear that Chinese law shall apply after the relevant foreign law has been excluded.