| The principle of evasion of law was originated from the decision by French Cour de Cassation when the rules of conflict law were scarce. It is essentially a special form of the principle of public order. Its purpose is to punish a person’s improper intention to circumvent the law. Consequently the definition of the intention of evasion is of paramount importance in the constitutive elements of evasion of law. However, a wide gulf exists between the subjectivity of the intention of evasion and the objectivity of judicial ascertainment. It frequently leads to the judicial tyranny, which significantly encroaches upon the logical harmony and the fundamental aim of the conflict law system.The modern conflict law regime is developing towards flexibility and diversification, putting more weight to party autonomy and human rights, while the principle of evasion of law runs counter to such a world trend. In France, the birthplace of the principle, it has passed into history. The Russian principle of evasion of law, which was imitated by several members of Commonwealth of Independent States (CIS), was stillborn soon after its draft was published. In the world, the corresponding statutes are scarce and in chaos. The judicial practices are very little and without good result either. In fact, the world-renowned Bauffremont Affair should not be treated as a classic case.In China, the principle of evasion of law is inconsistent with many existing rules of law and has not been proved necessary by the past judicial practices. Therefore the Supreme People’s Court of China shall abandon this outdated and obsolete principle, and make use of the advanced principle of the law of immediate application (lois d’application immédiate) and the traditional principle of public order to establish a “safety network” to protect national interests and strive for individual justice. |
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