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公共秩序保留作为国际私法中一项古老的制度,在外国法的适用和排除问题上发挥着重要的作用。但公共秩序保留制度犹如一把双刃剑:一方面,它具有维护法院地国立法管辖权的“安全阀”作用;另一方面,对该制度的过度适用会使法律选择的过程变得愈发的不确定。所以,针对我国的特殊国情,如何合理地适用公共秩序保留制度,对该制度进行必要的限制,防止其被滥用,成为国际私法理论研究和司法实践共同面对的课题。
As an ancient system of private international law, preservation of public order plays an important role in the application and exclusion of foreign law. However, the reservation system of public order is like a double-edged sword: on the one hand, it has the role of a “safety valve” to safeguard the legislative jurisdiction of the courts in the world; on the other hand, the excessive application of the system will make the process of legal choice Increased uncertainty. Therefore, according to the special national conditions of our country, how to apply the system of public order reservation reasonably and make necessary restrictions on the system so as to prevent it from being abused has become a common problem faced by both the theoretical and the judicial practice of private international law.