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公共秩序保留制度是外国法适用排除的重要制度之一。它的渊源非常久远,其源头可追溯到1804年出台的《法国民法典》之中。我国对于是否应用公共秩序保留制度一直保持肯定的态度,《民法通则》与《民事诉讼法》中均有相关法规的设立。但在我国的法律中,法律用词的模糊、法律适用标准的不统一、排除适用后选择法律的不确定及自由裁量权的滥用等问题也成为长久以来的诟病。本文从我国公共秩序保留制度的立法进程与内容入手,分析现行法律中的缺陷,对立法完善提出建设性意见。
The system of preserving public order is one of the important systems to be excluded from the application of foreign law. Its origins are very long and its origins can be traced back to the French Civil Code promulgated in 1804. Our country has always maintained a positive attitude towards the application of the system of preserving public order. Both the “General Principles of Civil Law” and the “Code of Civil Procedure” have established relevant laws and regulations. However, in our country law, the problems such as the vagueness of the legal terms, the inconsistency of the applicable standards of law, the uncertainty of the law after excluding the applicable law and the abuse of the discretion have also become a long criticism. This article starts with the legislative process and content of the system of keeping public order in our country, analyzes the defects in the current law and puts forward constructive suggestions on the perfection of legislation.