| Although the overriding mandatory rule is a new system established by the Law of the People's Republic of China on the Laws Applicable to Foreign-Related Civil Relations, it deals with a common issue that has existed long before the law was adopted. Before the adoption of this rule, China had resorted to such alternative mechanisms as anti-evasion of law, public order reservation and escape clause, which together have maintained a systematic balance in judicial practice to remedy this institutional deficiency. Due to the existence of common public concerns, after the overriding mandatory rule is written into the law, it has compressed the functional boundaries of alternative mechanisms, resulting in conflicts of applications. Theoretically, differences among different mechanisms in the applicable hierarchy and functional preference should have enabled them to avoid the conflicts of application among different rules. However, because of the result-oriented feature of the overriding mandatory rule in definition and application and the weakening or even the total loss of the functional emphasis of alternative mechanisms, various distinct rules re-intertwine with each other and once again produce conflicts of application. Systematic rebalance should be achieved through the determination of application boundaries and hierarchies of respective mechanisms. Accordingly, functional shift of the rule of anti-evasion of law can be made from protecting the mandatory rule of forum law to protecting related systems of law and the function of the rule of public order reservation can be divided into positive one afforded by overriding mandatory rule and the negative one afforded by public order reservation. |
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