我国涉外合同中的强制性规范适用研究

Research on the Application of Mandatory Rules in Foreign-Related Contract in China

摘要: 随着我国对外开放进程的加快，涉外合同案件数量逐年上升，法律适用问题日益突出，尤其是限制当事人意思自治的强制性规范在适用中存在诸多问题。本文通过实证分析，梳理了《法律适用法》实施以来的相关案例，揭示了我国涉外合同中强制性规范适用的现状与不足。研究发现，强制性规范在涉外合同中的适用较为广泛，但存在立法依据不足，强制性规范的范围和界定标准不清，且与冲突规范、公共秩序保留及法律规避存在混用的问题。故通过借鉴域外经验，提出了完善我国涉外合同中强制性规范适用的建议，包括应明确强制性规范的范围和界定标准，制定一般适用规则，增加对外国强制性规范的适用条款，并加强对弱势群体的保护。此外，应厘清强制性规范与冲突规范的关系，明确其与公共秩序保留和法律规避的区别，避免司法实践中的混淆适用。

Abstract: With the acceleration of China’s opening-up process, the number of foreign-related contract cases has been increasing year by year, and the issue of law application has become increasingly prominent. In particular, the application of mandatory rules that restrict party autonomy faces numerous challenges. Through empirical analysis, this paper examines relevant cases since the implementation of the Law on the Application of Law, revealing the current status and shortcomings of the application of mandatory rules in foreign-related contracts in China. The study finds that mandatory rules are widely applied in foreign-related contracts, but problems persist, including insufficient legislative basis, unclear scope and defining criteria for mandatory rules, as well as confusion in their interaction with conflict-of-law rules, public policy reservation, and evasion of law. Drawing on international experience, this paper proposes recommendations for improving the application of mandatory rules in China’s foreign-related contracts. These include clarifying the scope and defining criteria of mandatory rules, establishing general application rules, adding provisions for the application of foreign mandatory rules, and strengthening the protection of vulnerable groups. Additionally, it is essential to clarify the relationship between mandatory rules and conflict-of-law rules, distinguish them from public policy reservation and evasion of law, and avoid confusion in judicial practice.