屬人法連結點的適用比較
發(fā)布時間：2018-08-03 18:23
【摘要】：在國際私法中,屬人法連結點的適用直接關系到涉外民商事法律關系當事人的切身利益,對涉外私法關系起著決定性的作用。因為,在同一涉外民商事法律關系的準據(jù)法的確定中,采用不同的屬人法標準,即選擇不同的連結點,往往會得出不同甚至截然相反的結果；并且,屬人法連結點本身在不同國家尚存在不同的認定標準,如住所、慣常居所的確定等。因而,即便對同一涉外民商事法律關系的準據(jù)法的確定采用同一屬人法連結點,也可能會因認定的不同而得出不一致的結果。此外,屬人法各連結點還是判定涉外民商事法律關系和確定國際管轄權的重要依據(jù)�？梢�,屬人法連結點在國際私法中具有著十分重要的意義。然而,目前學界對該問題的研究側重不一,并且尚不夠全面和系統(tǒng),尤其缺乏對屬人法連結點確立的原則和具體適用方法的比較研究。另外,對慣常居所的確定標準的討論也不多。故此,加強對屬人法連結點的深入研究無疑是十分重要和必要的。 在“國籍”的觀念還不占主要地位的時代,住所曾是屬人法確立的第一個標準。自13世紀的“法則區(qū)別說”起至1804年的《法國民法典》出臺前的約600年間,住所一直作為屬人法的唯一連結點被使用。然而,1804年《法國民法典》的出臺打破了這種獨秀一枝的局面,國籍作為連結點首次出現(xiàn)在該法之中,后經(jīng)意大利政治學家兼法學家孟西尼的倡導,國籍作為屬人法連結點在歐洲大陸國家迅速得以確立,是為本國法主義。與此同時,英美等普通法系國家卻仍然堅持以住所作為屬人法的連結點,是為住所地法主義。自此,兩大法系在屬人法標準的確立問題上產(chǎn)生了重大分歧。后來,隨著經(jīng)濟和社會的發(fā)展,越來越多的人走出國門而定居國外,甚至在那兒終其一生而不再歸國,這時其與住所地國的聯(lián)系較國籍國則更為密切。因此,一些大陸法系國家,如瑞士,在屬人法連結點的確立上一改先前的本國法主義而往住所靠近。但國籍與住所的沖突畢竟還是阻礙了國際私法的統(tǒng)一化進程。因此,為解決這一問題,在國際社會的努力下,確定屬人法的一個新標準,即慣常居所地法便應運而生。其開始主要被用于海牙國際私法會議通過的一系列國際公約中,后也被越來越多的國內立法所采用。自此,確定屬人法的標準主要有國籍、住所和慣常居所這么三個連結點,盡管在屬人法領域的準據(jù)法的確定中也出現(xiàn)有居所和現(xiàn)在(所在)地等連結點。 那么,屬人法的連結點究應如何確立呢?在將24個國家的相關國內立法及24個國際私法公約作比較研究后,得出結論認為：第一,當前大多數(shù)國家在屬人法連結點的確立問題上都采取審慎的態(tài)度,一般都反對采取單一選擇制原則,即不絕對地以國籍、住所或慣常居所中的任何一個作為所有屬人事項的準據(jù)法確定的唯一或單一連結點；而往往采取的是根據(jù)不同情況適用不同方法采用不同連結點的多元選擇制原則。第二,在各連結點的具體適用方法上,一般也不采用單一連結點的方法,而采用較多的是以其中的一個連結點為主而予以首選適用,而以其他連結點作為其補充而予以依次適用；或者采用任意選擇的方法,將兩個或更多的連結點作為并列的連結點予以任意選擇適用。第三,至于慣常居所,一般是要么作為國籍或住所的補充連結點被予以依次適用的,要么與國籍、住所等連結點并列而被予以任意選擇適用,而較少作為首選連結點或單一連結點被予以適用。 因此,可以預測,慣常居所作為連結點在國際私法立法中出現(xiàn)的頻率會越來越高,其在國際私法中的地位和作用也會因此而得以不斷加強。盡管如此,可以斷言,慣常居所在未來相當長的一段時期內不管是在普通法系國家還是在大陸法系國家都不會絕對地取代國籍或住所而成為屬人法確立的唯一標準,其主要還是作為一個輔助性的連結點被予以適用的,尤其是在傳統(tǒng)的屬人法領域。因為,屬人法乃附隨于人而適用的法律,自應以一定程度的可確定性為考慮因素。然而,慣常居所這個概念目前還沒有明確的、統(tǒng)一的定義,因此界定該概念的任務或權力便落在了法官們的身上。而過多的自由裁量權實難平衡法律的穩(wěn)定性或可預見性與靈活性之間的關系。 我國于2010年出臺了《涉外民事關系法律適用法》,這是我國第 一部關于國際私法的單行立法,對整個國家法律體系的建立具有重要的意義。通過對該法條文的逐一統(tǒng)計和分析發(fā)現(xiàn)：該法在屬人法連結點的確立上采用的是多元選擇制原則,這是非常值得肯定的地方；然而,該法大量使用“經(jīng)常居所”作為相關事項準據(jù)法確定的單一連結點和首選連結點；國籍也多是作為輔助性的連結點而出現(xiàn)的；住所連結點根本沒被采用。 這種在屬人法連結點的確立上無視住所、輕視國籍、過于倚重經(jīng)常居所的做法實難找到合理的解釋；況且,經(jīng)常居所作為屬人法連結點在我國立法中找不到合理的依據(jù),也與國際通行用語不一致；另外,該法在屬人法的具體適用方面還存在連結點欠缺等問題。然而,法律的出臺總凝聚著不少人的心血,不能一味地責難,研究的目的是為了更好地將之完善。當務之急,便是確定對“經(jīng)常居所”的概念界定。參照國際上通行的“慣常居所”的概念的確定,主要有兩種標準：一種是要求一定程度的定居意圖的主觀標準；一種是綜合分析客觀經(jīng)歷和具體環(huán)境的客觀標準。主觀標準容易使其成為像住所概念那樣的技術性術語；客觀標準強調的是當事人與某一地域的實質聯(lián)系,這既符合國際私法中的最密切聯(lián)系原則,也使得慣常居所易于確定,故建議我國司法實踐也以此為鑒。
[Abstract]:In private international law, the application of the association of personal law is directly related to the vital interests of the parties concerned with foreign civil and commercial legal relations, and plays a decisive role in the relationship between the foreign-related private law. Because, in the determination of the applicable law of the same foreign-related civil and commercial legal relations, the adoption of different standards of human law, that is, the choice of different links, will often be obtained. There are different and even opposite results; moreover, there are different standards of identification in different countries, such as domicile and habitual residence in different countries. Therefore, even the same person law association may be determined by the same personal law even to the same legal relation of the same foreign-related civil and commercial legal relations. In addition, the connection points of the personal law are also the important basis for determining the legal relations of the foreign-related civil and commercial affairs and the determination of the international jurisdiction. It is obvious that the connection points of the personal law are of great significance in the private international law. However, at present, the study on this issue has a different emphasis on this issue, and is not yet comprehensive and systematic, especially the lack of personal people. In addition, there are few discussions on the criteria for the determination of habitual residence. Therefore, it is very important and necessary to strengthen the in-depth study of the association of personal law.
In a time when the concept of "nationality" was not dominant, domicile was the first standard of the establishment of personal law. The residence has been used as the only connecting point of personal law since the "rule of law" in thirteenth Century until the introduction of the law of the law of 1804 before the introduction of the law of the law. However, the promulgation of the law of the French national code in 1804 was broken. For the first time, nationality as a connecting point appeared in the law. After the advocacy of Italy political scientist and jurist mencii, nationality was quickly established in the continental countries as a personal legal connection, and it was for the law of the country. At the same time, the common law countries, such as Britain and the United States, still insist on their domicile. The connecting point of the personal law is for the domicile law. Since then, the two legal systems have produced significant differences in the establishment of the standard of personal law. Later, with the development of economy and society, more and more people came out of the country and settled abroad, even there and no longer return to the country. The connection with the domicile countries was more than the state of nationality. More closely. Therefore, some civil law countries, such as Switzerland, have changed the previous national Legalism to the domicile in the establishment of the association of personal law, but the conflict between nationality and domicile has hindered the unification process of private international law after all. The new standard, the habitual place of residence law, came into being. Its beginning was mainly used in a series of international conventions passed by the Hague Conference on private international law and was adopted by more and more domestic legislation. Since then, the criteria for determining the personal law are mainly the 13 connecting points of nationality, domicile and habitual residence, despite the evidence in the field of personal law. There are also nodes in the determination of law in the areas of residence and present (location).
Then, how should the connection point of the personal law be established? After a comparative study of the relevant domestic legislation and the 24 Private International Law Conventions in 24 countries, the conclusion is that: first, most countries take a prudent attitude on the establishment of the association of personal law, and generally oppose the principle of single choice, that is to say, Any single or single connection determined by the applicable law of all personal matters in the place of nationality, domicile, or habitual residence; and the principle of multiple choice system which is used in different ways to apply different connecting points according to different circumstances. Second, in the specific application method of each connection point, it is generally not used. The method of a node, which is more suitable to be preferred by one of its connected nodes, is applied in turn as a supplement to other points of connection; or by a random selection method, two or more links are used as a paratactic connection point for arbitrary selection. Third, as to habitual residence, It is generally applicable either as a complementary link point of nationality or domicile, or is arbitrarily chosen to be applied arbitrarily with nationality, residence and other connecting points, and less as the preferred connection point or single connection.
Therefore, it can be predicted that the frequency of the habitual residence as a link in the legislation of private international law will become higher and higher, and its position and role in the private international law will be strengthened. It is the only standard that the state will not replace nationality or domicile absolutely. It is mainly applied as an auxiliary link, especially in the traditional field of personal law, because the law is a law that is attached to human beings and should be taken into consideration to a certain degree of certainty. At present, the concept of habitual residence is not yet clear and unified, so the task or power to define the concept falls on the judges, and too much discretion is difficult to balance the stability of the law or the relationship between predictability and flexibility.
In 2010, China promulgated the law applicable to foreign related civil relations.
A single line of legislation on private international law is of great significance to the establishment of the legal system of the whole country. Through one by one statistics and analysis of the provisions of the law, it is found that the law adopts the principle of multiple choice in the establishment of the association of personal law, which is very worthy of affirmation; however, the law uses a lot of "frequent residence". "As a single connection and preferred connecting point determined by the applicable law of the relevant matters, and the appearance of nationality as a complementary link point; the connection point of the residence is not adopted at all."
It is difficult to find a reasonable explanation in the establishment of the association of personal law, ignoring the domicile, ignoring the nationality and relying too heavily on the habitual residence. Moreover, the regular residence, as a personal law association, can not find a reasonable basis in our country's legislation and is not consistent with the international common use. In addition, the law is also applicable to the specific application of the personal law. However, the problem of lack of connection points. However, the introduction of the law always condense a lot of people, not to blame blindly. The purpose of the study is to improve it better. The urgent matter is to define the definition of the concept of "habitual residence". In the light of the definition of the concept of "habitual residence", which is popular in the world, there are two main standards: One is the subjective standard that requires a certain degree of settlement intention; one is the objective standard of the comprehensive analysis of the objective experience and the specific environment. The subjective standard makes it easy to make it a technical term like the concept of the domicile; the objective standard emphasizes the substantive connection between the parties and a region, which is in line with the closest international private law. The principle of connection also makes the habitual residence easy to determine. Therefore, it is suggested that judicial practice in China be taken as a reference.
【學位授予單位】：湖南師范大學
【學位級別】：博士
【學位授予年份】：2012
【分類號】：D997
本文編號：2162581
[Abstract]:In private international law, the application of the association of personal law is directly related to the vital interests of the parties concerned with foreign civil and commercial legal relations, and plays a decisive role in the relationship between the foreign-related private law. Because, in the determination of the applicable law of the same foreign-related civil and commercial legal relations, the adoption of different standards of human law, that is, the choice of different links, will often be obtained. There are different and even opposite results; moreover, there are different standards of identification in different countries, such as domicile and habitual residence in different countries. Therefore, even the same person law association may be determined by the same personal law even to the same legal relation of the same foreign-related civil and commercial legal relations. In addition, the connection points of the personal law are also the important basis for determining the legal relations of the foreign-related civil and commercial affairs and the determination of the international jurisdiction. It is obvious that the connection points of the personal law are of great significance in the private international law. However, at present, the study on this issue has a different emphasis on this issue, and is not yet comprehensive and systematic, especially the lack of personal people. In addition, there are few discussions on the criteria for the determination of habitual residence. Therefore, it is very important and necessary to strengthen the in-depth study of the association of personal law.
In a time when the concept of "nationality" was not dominant, domicile was the first standard of the establishment of personal law. The residence has been used as the only connecting point of personal law since the "rule of law" in thirteenth Century until the introduction of the law of the law of 1804 before the introduction of the law of the law. However, the promulgation of the law of the French national code in 1804 was broken. For the first time, nationality as a connecting point appeared in the law. After the advocacy of Italy political scientist and jurist mencii, nationality was quickly established in the continental countries as a personal legal connection, and it was for the law of the country. At the same time, the common law countries, such as Britain and the United States, still insist on their domicile. The connecting point of the personal law is for the domicile law. Since then, the two legal systems have produced significant differences in the establishment of the standard of personal law. Later, with the development of economy and society, more and more people came out of the country and settled abroad, even there and no longer return to the country. The connection with the domicile countries was more than the state of nationality. More closely. Therefore, some civil law countries, such as Switzerland, have changed the previous national Legalism to the domicile in the establishment of the association of personal law, but the conflict between nationality and domicile has hindered the unification process of private international law after all. The new standard, the habitual place of residence law, came into being. Its beginning was mainly used in a series of international conventions passed by the Hague Conference on private international law and was adopted by more and more domestic legislation. Since then, the criteria for determining the personal law are mainly the 13 connecting points of nationality, domicile and habitual residence, despite the evidence in the field of personal law. There are also nodes in the determination of law in the areas of residence and present (location).
Then, how should the connection point of the personal law be established? After a comparative study of the relevant domestic legislation and the 24 Private International Law Conventions in 24 countries, the conclusion is that: first, most countries take a prudent attitude on the establishment of the association of personal law, and generally oppose the principle of single choice, that is to say, Any single or single connection determined by the applicable law of all personal matters in the place of nationality, domicile, or habitual residence; and the principle of multiple choice system which is used in different ways to apply different connecting points according to different circumstances. Second, in the specific application method of each connection point, it is generally not used. The method of a node, which is more suitable to be preferred by one of its connected nodes, is applied in turn as a supplement to other points of connection; or by a random selection method, two or more links are used as a paratactic connection point for arbitrary selection. Third, as to habitual residence, It is generally applicable either as a complementary link point of nationality or domicile, or is arbitrarily chosen to be applied arbitrarily with nationality, residence and other connecting points, and less as the preferred connection point or single connection.
Therefore, it can be predicted that the frequency of the habitual residence as a link in the legislation of private international law will become higher and higher, and its position and role in the private international law will be strengthened. It is the only standard that the state will not replace nationality or domicile absolutely. It is mainly applied as an auxiliary link, especially in the traditional field of personal law, because the law is a law that is attached to human beings and should be taken into consideration to a certain degree of certainty. At present, the concept of habitual residence is not yet clear and unified, so the task or power to define the concept falls on the judges, and too much discretion is difficult to balance the stability of the law or the relationship between predictability and flexibility.
In 2010, China promulgated the law applicable to foreign related civil relations.
A single line of legislation on private international law is of great significance to the establishment of the legal system of the whole country. Through one by one statistics and analysis of the provisions of the law, it is found that the law adopts the principle of multiple choice in the establishment of the association of personal law, which is very worthy of affirmation; however, the law uses a lot of "frequent residence". "As a single connection and preferred connecting point determined by the applicable law of the relevant matters, and the appearance of nationality as a complementary link point; the connection point of the residence is not adopted at all."
It is difficult to find a reasonable explanation in the establishment of the association of personal law, ignoring the domicile, ignoring the nationality and relying too heavily on the habitual residence. Moreover, the regular residence, as a personal law association, can not find a reasonable basis in our country's legislation and is not consistent with the international common use. In addition, the law is also applicable to the specific application of the personal law. However, the problem of lack of connection points. However, the introduction of the law always condense a lot of people, not to blame blindly. The purpose of the study is to improve it better. The urgent matter is to define the definition of the concept of "habitual residence". In the light of the definition of the concept of "habitual residence", which is popular in the world, there are two main standards: One is the subjective standard that requires a certain degree of settlement intention; one is the objective standard of the comprehensive analysis of the objective experience and the specific environment. The subjective standard makes it easy to make it a technical term like the concept of the domicile; the objective standard emphasizes the substantive connection between the parties and a region, which is in line with the closest international private law. The principle of connection also makes the habitual residence easy to determine. Therefore, it is suggested that judicial practice in China be taken as a reference.
【學位授予單位】：湖南師范大學
【學位級別】：博士
【學位授予年份】：2012
【分類號】：D997
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