貨幣債務(wù)跨國(guó)履行的法律問(wèn)題研究
發(fā)布時(shí)間：2018-08-03 12:16
【摘要】：幾乎所有的國(guó)際經(jīng)貿(mào)合同都會(huì)涉及貨幣債務(wù)的跨國(guó)履行問(wèn)題,而且國(guó)際范圍內(nèi)的損害賠償和恢復(fù)原狀等救濟(jì)措施大多都通過(guò)貨幣償付予以實(shí)現(xiàn)。但也許是人們對(duì)這些現(xiàn)象已經(jīng)習(xí)以為常,所以往往會(huì)忽視貨幣債務(wù)跨國(guó)履行問(wèn)題的復(fù)雜性�；谶@一考慮,本文擬對(duì)這些問(wèn)題進(jìn)行梳理,通過(guò)分析相關(guān)法律原則和實(shí)踐經(jīng)驗(yàn),試圖提出解決這些問(wèn)題的具體辦法。 本文共五章。第一章對(duì)與“貨幣債務(wù)跨國(guó)履行”有關(guān)的基本概念作了厘清,對(duì)于貨幣法這一比較“偏遠(yuǎn)”的領(lǐng)域,首先對(duì)這些概念進(jìn)行界定是非常必要的。在此基礎(chǔ)上,本章指出了貨幣債務(wù)跨國(guó)履行的特殊性即貨幣主權(quán)因素,并將其作為整篇文章的主線展開(kāi)討論。第二章是關(guān)于貨幣債務(wù)跨國(guó)履行所依據(jù)的基本法律原則,這是整篇文章的理論基礎(chǔ),該章所闡明的兩個(gè)基本原則在其后三章中都有所體現(xiàn),而且也是解決后續(xù)具體問(wèn)題的理論基礎(chǔ)。第三、四、五章相當(dāng)于本文的分論。實(shí)踐中,貨幣債務(wù)跨國(guó)履行遭遇的風(fēng)險(xiǎn)主要包括貶值、外匯管制和外幣債務(wù)判決等,這三章分別針對(duì)這三個(gè)方面進(jìn)行闡述、分析和論證。具體而言,本文的基本結(jié)構(gòu)和主要內(nèi)容表述如下： 第一章是對(duì)“貨幣債務(wù)履行”涉及的基本概念的界定,包括貨幣、貨幣債務(wù)和貨幣債務(wù)的履行等。本章首先明確了“貨幣”的含義,然后在考察貨幣經(jīng)濟(jì)功能的基礎(chǔ)上,引出貨幣的相關(guān)理論。貨幣的功能與相關(guān)理論之間相互作用,并由此發(fā)展出一系列新的貨幣形式,從而賦予貨幣更加廣泛的法律含義�！柏泿艂鶆�(wù)”的承認(rèn)比界定更容易些,本章首先分析總結(jié)了貨幣債務(wù)的特點(diǎn),并以此為根據(jù)對(duì)其作了界定。確定貨幣債務(wù)主要包括兩個(gè)方面,一是貨幣債務(wù)的價(jià)格,二是表示此價(jià)格的貨幣即記賬貨幣,本章就這兩個(gè)方面分別作了討論�！柏泿艂鶆�(wù)跨國(guó)履行”過(guò)程中會(huì)牽涉很多問(wèn)題,大致包括支付的時(shí)間、地點(diǎn)和貨幣等三個(gè)方面。這些問(wèn)題主要由各國(guó)民商法具體規(guī)定,國(guó)際上并沒(méi)有統(tǒng)一的解決辦法,本章主要從宏觀上對(duì)這些問(wèn)題作了簡(jiǎn)要論述。本章最后指出貨幣債務(wù)跨國(guó)履行最大的特殊性——貨幣主權(quán),并圍繞該特殊性闡明本文將要討論的內(nèi)容。 第二章討論跨國(guó)貨幣債務(wù)履行中的兩個(gè)基本法律原則,即唯名主義和貨幣法則,這是后面三章的理論基礎(chǔ)。貨幣價(jià)值在合同簽訂日和到期日之間可能發(fā)生變動(dòng),而債務(wù)人只要償付名義價(jià)值即可,無(wú)需考慮該變動(dòng)情況,這便是唯名主義原則：而貨幣法則指的是在界定貨幣本身或者貨幣體系時(shí),必須適用貨幣發(fā)行國(guó)的法律。唯名主義是貨幣法的基本原則,貨幣法則也已經(jīng)成為習(xí)慣國(guó)際法規(guī)則,這兩個(gè)原則貫穿于貨幣債務(wù)跨國(guó)履行的始終,并且對(duì)于法院判決具有重要的理論指引作用。本章試圖探尋這兩個(gè)法律原則的含義、性質(zhì)和實(shí)踐狀況,并對(duì)他們進(jìn)行對(duì)比分析,從而闡明它們?cè)谪泿艂鶆?wù)跨國(guó)履行中的實(shí)踐意義。 貨幣貶值是目前全球最緊迫的經(jīng)濟(jì)和社會(huì)問(wèn)題之一,不論是經(jīng)濟(jì)狀況相對(duì)穩(wěn)定還是不穩(wěn)定的國(guó)家,都不同程度地承受貶值的風(fēng)險(xiǎn)。第三章專(zhuān)門(mén)針對(duì)貨幣債務(wù)履行過(guò)程中的貶值問(wèn)題提供解決途徑——重新估價(jià)與保值條款。該章首先從重新估價(jià)的理論基礎(chǔ)談起,并對(duì)國(guó)際貨幣史上兩次典型的重新估價(jià)作了介紹、分析、對(duì)比和評(píng)價(jià),在此基礎(chǔ)上論證了其可行性與科學(xué)性。然后,本章專(zhuān)門(mén)介紹了先后出現(xiàn)的幾種保值條款,對(duì)其中使用率最高的黃金條款和指數(shù)條款作了深入探討,在此基礎(chǔ)上評(píng)價(jià)并展望了其發(fā)展趨勢(shì)。 第四章討論貨幣債務(wù)跨國(guó)履行過(guò)程中的外匯管制問(wèn)題。雖然《國(guó)際貨幣基金協(xié)定》將取消外匯管制作為其宗旨之一,但是由于各國(guó)都要維護(hù)本國(guó)的貨幣主權(quán)和經(jīng)濟(jì)利益,所以該協(xié)定仍然承認(rèn)各成員國(guó)外匯管制措施的國(guó)際法效力。外匯管制在國(guó)際商事交易中發(fā)揮著非常重要的作用,對(duì)貨幣債務(wù)的跨國(guó)履行會(huì)產(chǎn)生多方面的影響,例如可以使貨幣支付非法,阻止貨幣債務(wù)履行,或者對(duì)履行方式產(chǎn)生影響等。本章首先從外匯管制的歷史發(fā)展、法律依據(jù)和法律限制談起,然后探討了《國(guó)際貨幣基金協(xié)定》第8條第2款(b)中幾個(gè)關(guān)鍵詞的實(shí)踐含義,最后對(duì)外匯管制的國(guó)際私法規(guī)則進(jìn)行了梳理、分析和評(píng)價(jià)。 第五章討論貨幣債務(wù)跨國(guó)履行的爭(zhēng)議解決——外幣債務(wù)判決。法院地貨幣／違約日規(guī)則曾經(jīng)被認(rèn)為是英美法系外幣債務(wù)判決的基本原則,并且對(duì)很多大陸法系國(guó)家產(chǎn)生過(guò)重要影響,這種狀況一直持續(xù)到1975年英國(guó)上議院的Miliangos案才發(fā)生改變。Miliangos案及其后的一系列案件將外幣債務(wù)判決的貨幣規(guī)則發(fā)展為：法院可以用外國(guó)貨幣作出判決,或者按照實(shí)際支付日的匯率,將外國(guó)貨幣折算成本國(guó)貨幣進(jìn)行判決。本章以Miliangos案為線索,將問(wèn)題劃分為貨幣的選擇和兌換日的選擇兩個(gè)方面,并以這兩個(gè)方面為基點(diǎn)繼續(xù)延伸,討論它們的發(fā)展變化、各國(guó)實(shí)踐和國(guó)際國(guó)內(nèi)的立法情況。在這一過(guò)程中,本章結(jié)合貨幣債務(wù)的基本理論,深入探討了外幣債務(wù)判決的準(zhǔn)確性、公正性、預(yù)見(jiàn)性和靈活性等問(wèn)題,最后對(duì)外幣債務(wù)判決的國(guó)際化趨勢(shì)進(jìn)行了分析和評(píng)價(jià)。
[Abstract]:Almost all international economic and trade contracts involve the transnational implementation of monetary debt, and most of the relief measures, such as damages and remedies in the international scope, are realized through monetary payment. But perhaps people are accustomed to these phenomena and often ignore the complexity of the transnational performance of monetary debt. On the basis of this consideration, this paper intends to sort out these problems and try to put forward some specific solutions to these problems by analyzing the relevant legal principles and practical experiences.
This article is a total of five chapters. The first chapter clarifies the basic concepts related to the "transnational performance of monetary debt". It is necessary to define these concepts in the field of monetary law which is far from "remote". On this basis, this chapter points out the particularity of monetary debt transnational performance, namely, the factor of monetary sovereignty, and will make it. The second chapter is the basic legal principle of the transnational performance of the currency debt. This is the theoretical basis of the whole article. The two basic principles described in this chapter are reflected in the subsequent three chapters, and are also the theoretical basis for solving the following specific questions. Third, fourth, the five chapter is equivalent to Yu Benwen. In practice, the risk of the cross-border performance of monetary debt mainly includes devaluation, foreign exchange control and foreign currency debt judgment. These three chapters are respectively expounded, analyzed and demonstrated for the three aspects.
The first chapter is the definition of the basic concepts involved in the performance of "monetary debt", including currency, monetary debt and the performance of monetary debt. This chapter first clarifies the meaning of "money". Then, on the basis of examining the function of monetary economy, it leads to the related theory of money. A series of new forms of money have been developed to give the currency a broader legal meaning. The recognition of "monetary debt" is easier than defined. This chapter first analyzes and summarizes the characteristics of the currency debt and defines it based on it. It is determined that the monetary debt is mainly composed of two aspects, one is the price of monetary debt, and the two is the table. The currency of this price is the account currency. This chapter discusses the two aspects respectively. There are many problems involved in the process of "monetary debt transnational implementation", including three aspects, such as the time, place and currency of payment. These issues are mainly stipulated by the national commercial law, and there are no unified solutions in the world. At the end of this chapter, this chapter points out the greatest particularity of the transnational performance of currency debt - monetary sovereignty, and illustrates the contents of this article around the particularity.
The second chapter discusses the two basic legal principles in the performance of the transnational currency debt, namely, the nominalism and the monetary law, which is the theoretical basis of the later three chapters. The value of money may change between the date of signing the contract and the date of maturity, and the debtor will not consider the change as long as it pays the nominal value, which is the original name. And the principle of Monetary Law refers to the law of the currency issuer when defining the currency itself or the monetary system. The rationalism is the basic principle of the monetary law and the monetary law has become a rule of customary international law. These two principles run through the international performance of the currency debt and have an important reason for the court's judgment. This chapter tries to explore the meaning, nature and practice of these two legal principles, and makes a contrastive analysis of them, so as to clarify their practical significance in the transnational performance of monetary debt.
Devaluation is one of the most urgent economic and social problems in the world. Whether the country is relatively stable or unstable, the risk of devaluation is under varying degrees. The third chapter provides a solution to the devaluation in the process of the performance of monetary debt - revaluation and value preservation. The theoretical basis of the new valuation is discussed, and the two typical revaluation in the history of international currency is introduced, analyzed, contrasted and evaluated. On this basis, the feasibility and scientificity are demonstrated. Then, this chapter specializes in several protection clauses that appear successively, which makes a thorough exploration of the gold and index terms which have the highest rate of use. On this basis, the trend of development is evaluated and prospected.
The fourth chapter discusses the issue of foreign exchange control in the process of cross-border performance of currency debt. Although the IMF Agreement will abolish foreign exchange control as one of its purposes, the agreement still recognizes the effectiveness of international law of foreign exchange control measures of all Member States because of the need to maintain its monetary sovereignty and economic interests. The system plays a very important role in international commercial transactions, and has many effects on the transnational performance of the currency debt. For example, it can make the payment of money illegal, prevent the performance of the currency debt, or have an impact on the way of performance. The practical meaning of several key words in the eighth article of the International Monetary Fund Agreement (b) was discussed. Finally, the rules of international private law of foreign exchange control were combed, analyzed and evaluated.
The fifth chapter discusses the dispute settlement of the transnational performance of the currency debt - the foreign currency debt judgment. The court's currency / day of default rule has been considered as the basic principle of the foreign currency debt judgment in Anglo American law system, and has had an important impact on many civil law countries. This situation continued until the Miliangos case of the house of Lords in 1975. A series of cases that have changed the.Miliangos case and a series of cases after it develop the monetary rules of the foreign currency debt judgment: the court can make a decision in foreign currency, or convert the foreign currency into the currency of the cost country in accordance with the exchange rate of the actual payment day. This chapter divides the problem into the choice and exchange of money in the case of the case of Miliangos. In this process, this chapter discusses the accuracy, impartiality, foresight and flexibility of the foreign currency debt, and finally to the outside world. In this process, this chapter, in this process, combines the basic theory of currency debt, and discusses the accuracy, impartiality, foresight and flexibility of the foreign currency debt. The internationalization trend of currency debt judgment is analyzed and evaluated.
【學(xué)位授予單位】：武漢大學(xué)
【學(xué)位級(jí)別】：博士
【學(xué)位授予年份】：2011
【分類(lèi)號(hào)】：D996.1
本文編號(hào)：2161721
[Abstract]:Almost all international economic and trade contracts involve the transnational implementation of monetary debt, and most of the relief measures, such as damages and remedies in the international scope, are realized through monetary payment. But perhaps people are accustomed to these phenomena and often ignore the complexity of the transnational performance of monetary debt. On the basis of this consideration, this paper intends to sort out these problems and try to put forward some specific solutions to these problems by analyzing the relevant legal principles and practical experiences.
This article is a total of five chapters. The first chapter clarifies the basic concepts related to the "transnational performance of monetary debt". It is necessary to define these concepts in the field of monetary law which is far from "remote". On this basis, this chapter points out the particularity of monetary debt transnational performance, namely, the factor of monetary sovereignty, and will make it. The second chapter is the basic legal principle of the transnational performance of the currency debt. This is the theoretical basis of the whole article. The two basic principles described in this chapter are reflected in the subsequent three chapters, and are also the theoretical basis for solving the following specific questions. Third, fourth, the five chapter is equivalent to Yu Benwen. In practice, the risk of the cross-border performance of monetary debt mainly includes devaluation, foreign exchange control and foreign currency debt judgment. These three chapters are respectively expounded, analyzed and demonstrated for the three aspects.
The first chapter is the definition of the basic concepts involved in the performance of "monetary debt", including currency, monetary debt and the performance of monetary debt. This chapter first clarifies the meaning of "money". Then, on the basis of examining the function of monetary economy, it leads to the related theory of money. A series of new forms of money have been developed to give the currency a broader legal meaning. The recognition of "monetary debt" is easier than defined. This chapter first analyzes and summarizes the characteristics of the currency debt and defines it based on it. It is determined that the monetary debt is mainly composed of two aspects, one is the price of monetary debt, and the two is the table. The currency of this price is the account currency. This chapter discusses the two aspects respectively. There are many problems involved in the process of "monetary debt transnational implementation", including three aspects, such as the time, place and currency of payment. These issues are mainly stipulated by the national commercial law, and there are no unified solutions in the world. At the end of this chapter, this chapter points out the greatest particularity of the transnational performance of currency debt - monetary sovereignty, and illustrates the contents of this article around the particularity.
The second chapter discusses the two basic legal principles in the performance of the transnational currency debt, namely, the nominalism and the monetary law, which is the theoretical basis of the later three chapters. The value of money may change between the date of signing the contract and the date of maturity, and the debtor will not consider the change as long as it pays the nominal value, which is the original name. And the principle of Monetary Law refers to the law of the currency issuer when defining the currency itself or the monetary system. The rationalism is the basic principle of the monetary law and the monetary law has become a rule of customary international law. These two principles run through the international performance of the currency debt and have an important reason for the court's judgment. This chapter tries to explore the meaning, nature and practice of these two legal principles, and makes a contrastive analysis of them, so as to clarify their practical significance in the transnational performance of monetary debt.
Devaluation is one of the most urgent economic and social problems in the world. Whether the country is relatively stable or unstable, the risk of devaluation is under varying degrees. The third chapter provides a solution to the devaluation in the process of the performance of monetary debt - revaluation and value preservation. The theoretical basis of the new valuation is discussed, and the two typical revaluation in the history of international currency is introduced, analyzed, contrasted and evaluated. On this basis, the feasibility and scientificity are demonstrated. Then, this chapter specializes in several protection clauses that appear successively, which makes a thorough exploration of the gold and index terms which have the highest rate of use. On this basis, the trend of development is evaluated and prospected.
The fourth chapter discusses the issue of foreign exchange control in the process of cross-border performance of currency debt. Although the IMF Agreement will abolish foreign exchange control as one of its purposes, the agreement still recognizes the effectiveness of international law of foreign exchange control measures of all Member States because of the need to maintain its monetary sovereignty and economic interests. The system plays a very important role in international commercial transactions, and has many effects on the transnational performance of the currency debt. For example, it can make the payment of money illegal, prevent the performance of the currency debt, or have an impact on the way of performance. The practical meaning of several key words in the eighth article of the International Monetary Fund Agreement (b) was discussed. Finally, the rules of international private law of foreign exchange control were combed, analyzed and evaluated.
The fifth chapter discusses the dispute settlement of the transnational performance of the currency debt - the foreign currency debt judgment. The court's currency / day of default rule has been considered as the basic principle of the foreign currency debt judgment in Anglo American law system, and has had an important impact on many civil law countries. This situation continued until the Miliangos case of the house of Lords in 1975. A series of cases that have changed the.Miliangos case and a series of cases after it develop the monetary rules of the foreign currency debt judgment: the court can make a decision in foreign currency, or convert the foreign currency into the currency of the cost country in accordance with the exchange rate of the actual payment day. This chapter divides the problem into the choice and exchange of money in the case of the case of Miliangos. In this process, this chapter discusses the accuracy, impartiality, foresight and flexibility of the foreign currency debt, and finally to the outside world. In this process, this chapter, in this process, combines the basic theory of currency debt, and discusses the accuracy, impartiality, foresight and flexibility of the foreign currency debt. The internationalization trend of currency debt judgment is analyzed and evaluated.
【學(xué)位授予單位】：武漢大學(xué)
【學(xué)位級(jí)別】：博士
【學(xué)位授予年份】：2011
【分類(lèi)號(hào)】：D996.1
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