Становление концепции публичного порядка в современном международном частном праве

Abstract

The Concept, considered in the article, is based on the teachings of the outstanding German lawyer Friedrich Karl von Savigny, who singled out and systematized all the components of public order in private international law. The merit of the followers of F. K. Savigny is the separation of the two types (classes) of peremptory norms (peremptory and super-imperative) that he singled out into two spheres of the country’s unified public order (in the meaning of civil law and the meaning of private international law). Certain F K. The Savigny limits of the application of foreign law (the sphere of public order within the meaning of private international law), based on two groups of peremptory norms (laws of strictly compulsory nature and good morals), have received the names of positive and negative reservations in modern doctrine. The separation in the XX century of the said reservations to different articles of the legislation does not change the essence of the Concept of F K. Savigny does not take super-peremptory norms beyond the limits of public order within the meaning of private international law, since both protective clauses are based on the same public interests (publica utilitas, public interests). In that part of the Concept of public order of the country, which refers to the field of public order within the meaning of private international law, it is necessary to distinguish between rules formed on the basis of public interests (material norms - unilateral conflict rules - bilateral imperative conflict norms) and exceptions (reservations about the scope of application of foreign the rights). Protective reservations, like any reservations (comments, additions), are only part of the whole (Concept).