南都学坛2024，Vol.44Issue(3)：61-69,9.
涉外劳动合同法律适用中"直接适用的法"主客观标准之困
The Dilemma of Subjective and Objective Standards of"Directly Applicable Law"
摘要
Abstract
As a system widely adopted in private international law,"directly applicable law"has been put into practice in judicial practice since its legislative confirmation in 2010.Through combing relevant judicial cases,it can be seen that the"directly applicable law"has not been universally applied by local courts.Especially in the legal disputes of foreign-related labor contracts with tense labor-management relations,judges rarely invoke this clause to safeguard the legitimate rights and interests of foreign-related workers.The reason is that there are two obvious problems in the judicial practice of"directly applicable law".First,the scope of subjective standards is too large,which leads to the unreasonable order of application with the provisions of protective conflict norms and the provisions of public order reservation.Second,the expression of objective standards is too basic,which leads to confusion with unilateral conflict norms and self-limiting rules in concept.Therefore,it is urgent to sort out the main and objective criteria of"directly applicable law"and identify the causes of contradictions.By learning from foreign experience,the connotation of"directly applicable law"is further clarified at the legislative and judicial levels,and a harmonious environment for the application of foreign civil and commercial laws is constructed.关键词
"直接适用的法"/涉外劳动合同/主观标准/客观标准Key words
"directly applicable law"/foreign-related labor contract/subjective standard/objective standard分类
社会科学引用本文复制引用
李芷馨..涉外劳动合同法律适用中"直接适用的法"主客观标准之困[J].南都学坛,2024,44(3):61-69,9.基金项目
北京师范大学法学院学术型研究生专项科研基金课题"企业域外涉诉数据出境风险规制研究"(项目编号:2022LAW001). （项目编号:2022LAW001）
