論涉外侵權(quán)的共同屬人法
發(fā)布時間：2018-08-29 19:52
【摘要】：隨著《涉外民事關(guān)系法律適用法》(下稱《法律適用法》)的頒布,我國法院在審理涉外侵權(quán)案件時,在法律選擇上將出現(xiàn)重大變化。根據(jù)該法第44條規(guī)定,如果當事人具有共同經(jīng)常居所地,而他們在侵權(quán)行為發(fā)生后又沒有達成法律選擇協(xié)議,那么法院應適用當事人共同經(jīng)常居所地法。該條規(guī)定,改變了《民法通則》第146條中當事人的共同屬人法是由法官選擇適用的做法。這一變化,為我國國際私法研究提出了新的問題——如何對共同屬人法這一特殊沖突規(guī)范在涉外侵權(quán)領(lǐng)域的適用予以評估。即該規(guī)則是在什么樣的背景下產(chǎn)生的?其產(chǎn)生的理論根據(jù)是什么?在當今世界各國的國際私法立法和司法實踐,該規(guī)則是如何被加以運用的?單純適用該規(guī)則可能存在哪些問題?本文將嘗試解答上述問題。在寫作思路上,本文擬從兩個維度展開論述:其一,縱向的歷史維度。即從涉外侵權(quán)行為法律選擇規(guī)則發(fā)展史的角度,論述共同屬人法產(chǎn)生的背景及其確立的理論基礎(chǔ)。其二,橫向的比較法維度。即通過比較該規(guī)則在兩大法系的運用,嘗試指出該規(guī)則在成文國際私法立法中可能存在的問題和解決方法。以此為基礎(chǔ),本文在最后將結(jié)合我國涉外審判法律適用的現(xiàn)狀,對《法律適用法》第44條中的共同屬人法規(guī)定予以評析,并提出完善建議。在結(jié)構(gòu)上,本文分為四部分: 第一部分,涉外侵權(quán)法律選擇的屬地主義傳統(tǒng)。本部分主要回顧了涉外侵權(quán)法律選擇的三個傳統(tǒng)的沖突法規(guī)范——侵權(quán)行為地法、法院地法和雙重可訴規(guī)則。文章試圖指出,盡管這些規(guī)則在理論基礎(chǔ)和適用效果上迥然有別,但它們卻有一個共同的特點——強調(diào)地域與涉外侵權(quán)法律關(guān)系的重要聯(lián)系。因此,可以說傳統(tǒng)的法律選擇規(guī)則無一不具有濃重的屬地主義色彩,而當事人屬人因素則不在法律選擇的考慮范圍之內(nèi)。之所以如此,是與20世紀之前特定的社會條件和法律觀念密切相關(guān)聯(lián)的。 第二部分,共同屬人法在涉外侵權(quán)法律選擇中的確立。本部分主要分析了共同屬人法在美國司法實踐中確立的歷史背景、理論基礎(chǔ)和具體過程。人類在20世紀全面進入工業(yè)社會,從而使原來簡單的社會經(jīng)濟結(jié)構(gòu)變得日益復雜。各類新型侵權(quán)行為的出現(xiàn),促使侵權(quán)行為的歸責原則和賠償體系發(fā)生了巨大變化。侵權(quán)行為實體法是侵權(quán)行為沖突規(guī)范的根基。實體法的變革必然會對原有的法律選擇規(guī)則產(chǎn)生影響。而在美國,這種影響與法律現(xiàn)實主義結(jié)合,爆發(fā)了旨在改變傳統(tǒng)法律選擇規(guī)則的沖突法革命。在涉外侵權(quán)領(lǐng)域,這場革命的主要成果之一即是共同屬人法的出現(xiàn)�？ǜニ埂案鶕�(jù)實體法律的內(nèi)容進行選擇”的思想,不僅批判了傳統(tǒng)沖突規(guī)則,也為新規(guī)則的出現(xiàn)指明了道路。艾倫茨威格對行為管制規(guī)則和損害分擔規(guī)則的區(qū)分,首次闡明了屬人因素應在法律選擇過程中被加以考慮的理由。而柯里的“政府利益分析”理論,則為法官在實踐中比較取舍存在沖突的實體法提供了方法論支撐。學術(shù)界的新理論為美國法院提供了強大思想支援,最終使紐約最高法院在巴布考克案判決中,拋棄了傳統(tǒng)的侵權(quán)行為地法,適用了當事人的共同屬人法 第三部分,歐美各國關(guān)于涉外侵權(quán)共同屬人法的立法和實踐。本部分主要介紹自20世紀60年代以來,共同屬人法在美國的司法實踐和在歐洲大陸的立法。在美國,法院適用當事人共同屬人法有如下特點:其一,規(guī)則化傾向,如紐約州法院通過紐梅爾規(guī)則將該做法規(guī)則化,并在舒爾茨案中將其擴大適用于所有侵權(quán)案件;其二,適用共同屬人法不考慮實體結(jié)果;其三,將共同屬人法類推適用于相類似的案件。而在歐洲大陸,各國受美國沖突法革命的影響,也紛紛將共同屬人法引入到它們的國際私法立法中。鑒于該規(guī)則已成為各國的共識,故在2007年頒布的旨在統(tǒng)一歐盟各國在非合同之債領(lǐng)域法律選擇的《歐洲議會與歐盟委員會關(guān)于非同義務(wù)法律適用條例》(《羅馬條例II》)第4條第2款中,規(guī)定了共同屬人法對涉外侵權(quán)的適用。由此,可以認為共同屬人法在涉外侵權(quán)領(lǐng)域的適用,已是世界各國的普遍做法。 第四部分,我國立法中的涉外侵權(quán)共同屬人法及其存在的問題。本部分主要對我國現(xiàn)行立法即《民法通則》和《法律適用法》中的共同屬人法規(guī)定予以了分析,并著重指出了后者存在如下問題:“經(jīng)常居所地”這一用語表述欠妥、規(guī)則適用范圍過于狹窄和稍欠靈活性�；谏鲜龇治�,并結(jié)合我國司法實踐和各國的經(jīng)驗,文章認為未來對《法律適用法》進行修改時,應注意如下問題:注重法律選擇的確定性和靈活性的平衡;可考慮適當擴張共同屬人法的適用范圍;增加對侵權(quán)行為的行為管制規(guī)則予以考慮的條款;采用“慣常居所地”的表述。最后,文章建議將《法律適用法》第44條修改為:“侵權(quán)責任,適用侵權(quán)行為地法律。但當事人的慣常居所地位于同一國的,適用該國法律。侵權(quán)行為發(fā)生后,當事人協(xié)議選擇適用法律的,按照其協(xié)議�！�
[Abstract]:With the promulgation of the Law Applicable to Civil Relations involving Foreign Affairs (hereinafter referred to as the Law Applicable to Law), great changes will take place in the choice of law in our courts when dealing with foreign-related infringement cases. According to Article 44 of the Law, if the parties have a common habitual residence and they have not reached an agreement on the choice of law after the infringement occurs, then The law of the common habitual residence of the parties should be applied by the court. It changes the practice that the common personal law of the parties is chosen and applied by the judge in Article 146 of the General Principles of Civil Law. This article will try to answer the above questions. This paper intends to discuss from two dimensions: first, the vertical historical dimension, that is, from the perspective of the development history of the rule of choice of law for foreign-related torts, to discuss the background of the emergence of the common personal law and the theoretical basis for its establishment. second, the horizontal dimension of comparative law, that is, by comparing the application of the rule in the two legal systems, to try to point out the formation of the rule. On the basis of this, this paper will, at the end of the article, make an analysis of the provisions of the Common Subordinate Law in Article 44 of the Applicable Law of Law and put forward some suggestions for improvement.
The first part is about the territorialism tradition of the choice of law in foreign-related torts.This part mainly reviews three traditional conflict-of-laws norms of the choice of law in foreign-related torts: the law of the place of tort, the law of the court and the double actionable rules.The article tries to point out that although these rules are quite different in their theoretical basis and application effect, they do. A common feature is that it emphasizes the important connection between regions and foreign-related torts. Therefore, it can be said that all the traditional rules of choice of law have strong territorialism, while the personal factors of the parties are not considered in the scope of legal choice. Closely related to the concept of law.
This part mainly analyzes the historical background, the theoretical basis and the concrete process of the establishment of the common personal law in the judicial practice of the United States. The emergence of acts of right has brought about tremendous changes in the imputation principle and compensation system of tort. Substantive law of tort is the foundation of conflict norms of tort. Substantive law reform will inevitably have an impact on the original rules of choice of law. The Conflict Law Revolution of the Rules of Choice of Law. In the field of foreign-related infringement, one of the main achievements of this revolution is the emergence of the common personal law. Carvers'thought of "choosing according to the content of the substantive law" not only criticized the traditional conflict rules, but also pointed out the way for the emergence of the new rules. It is the first time to clarify the reason why personal factors should be taken into account in the process of legal choice. Corey's theory of "government interest analysis" provides methodological support for judges to compare and choose conflicting substantive laws in practice. In the Babcock case, the Supreme Court of New York abandoned the traditional law of place of tort and applied the common personal law of the parties.
This part mainly introduces the judicial practice of the common personal law in the United States and the legislation in the Continent of Europe since the 1960s. In the United States, the application of the common personal law of the parties in the courts has the following characteristics: First, the tendency of regularization, such as the New York State Court of Justice. In the Schultz case, the Common Personal Law does not take into account substantive results; in the third place, the Common Personal Law is applied to similar cases by analogy. In view of the fact that this rule has become a consensus of all countries, article 4, paragraph 2, of the European Parliament and European Commission Regulations on the Application of Law on Non-contractual Obligations (Rome Regulation II), promulgated in 2007 to unify the Legal Choices of EU countries in the field of non-contractual debt, provides for a common personal law concerning foreign affairs. Therefore, it can be considered that the application of the common subordinate law in the field of foreign-related infringement has become a common practice in the world.
The fourth part, the common personal law of foreign-related infringement in China's legislation and its existing problems. This part mainly analyzes the provisions of the common personal law in China's current legislation, namely, the General Principles of Civil Law and the Applicable Law of Law, and stresses the following problems in the latter: the term "habitual residence" is not properly expressed and the rules are applicable. Based on the above analysis and combined with the judicial practice of our country and the experience of other countries, the article holds that the following problems should be paid attention to when amending the Law of Applicable Law in the future: paying attention to the balance between the certainty and flexibility of the choice of law; appropriately expanding the scope of application of the common personal law; increasing infringement Finally, the article proposes to amend Article 44 of the Applicable Law of Law to read: "Liability for tort shall apply to the law of the place of tort, but the law of that country shall apply if the party's habitual residence is in the same country. The application of the law shall be in accordance with its agreement. "
【學位授予單位】：西南政法大學
【學位級別】：碩士
【學位授予年份】：2011
【分類號】：D997
本文編號：2212241
[Abstract]:With the promulgation of the Law Applicable to Civil Relations involving Foreign Affairs (hereinafter referred to as the Law Applicable to Law), great changes will take place in the choice of law in our courts when dealing with foreign-related infringement cases. According to Article 44 of the Law, if the parties have a common habitual residence and they have not reached an agreement on the choice of law after the infringement occurs, then The law of the common habitual residence of the parties should be applied by the court. It changes the practice that the common personal law of the parties is chosen and applied by the judge in Article 146 of the General Principles of Civil Law. This article will try to answer the above questions. This paper intends to discuss from two dimensions: first, the vertical historical dimension, that is, from the perspective of the development history of the rule of choice of law for foreign-related torts, to discuss the background of the emergence of the common personal law and the theoretical basis for its establishment. second, the horizontal dimension of comparative law, that is, by comparing the application of the rule in the two legal systems, to try to point out the formation of the rule. On the basis of this, this paper will, at the end of the article, make an analysis of the provisions of the Common Subordinate Law in Article 44 of the Applicable Law of Law and put forward some suggestions for improvement.
The first part is about the territorialism tradition of the choice of law in foreign-related torts.This part mainly reviews three traditional conflict-of-laws norms of the choice of law in foreign-related torts: the law of the place of tort, the law of the court and the double actionable rules.The article tries to point out that although these rules are quite different in their theoretical basis and application effect, they do. A common feature is that it emphasizes the important connection between regions and foreign-related torts. Therefore, it can be said that all the traditional rules of choice of law have strong territorialism, while the personal factors of the parties are not considered in the scope of legal choice. Closely related to the concept of law.
This part mainly analyzes the historical background, the theoretical basis and the concrete process of the establishment of the common personal law in the judicial practice of the United States. The emergence of acts of right has brought about tremendous changes in the imputation principle and compensation system of tort. Substantive law of tort is the foundation of conflict norms of tort. Substantive law reform will inevitably have an impact on the original rules of choice of law. The Conflict Law Revolution of the Rules of Choice of Law. In the field of foreign-related infringement, one of the main achievements of this revolution is the emergence of the common personal law. Carvers'thought of "choosing according to the content of the substantive law" not only criticized the traditional conflict rules, but also pointed out the way for the emergence of the new rules. It is the first time to clarify the reason why personal factors should be taken into account in the process of legal choice. Corey's theory of "government interest analysis" provides methodological support for judges to compare and choose conflicting substantive laws in practice. In the Babcock case, the Supreme Court of New York abandoned the traditional law of place of tort and applied the common personal law of the parties.
This part mainly introduces the judicial practice of the common personal law in the United States and the legislation in the Continent of Europe since the 1960s. In the United States, the application of the common personal law of the parties in the courts has the following characteristics: First, the tendency of regularization, such as the New York State Court of Justice. In the Schultz case, the Common Personal Law does not take into account substantive results; in the third place, the Common Personal Law is applied to similar cases by analogy. In view of the fact that this rule has become a consensus of all countries, article 4, paragraph 2, of the European Parliament and European Commission Regulations on the Application of Law on Non-contractual Obligations (Rome Regulation II), promulgated in 2007 to unify the Legal Choices of EU countries in the field of non-contractual debt, provides for a common personal law concerning foreign affairs. Therefore, it can be considered that the application of the common subordinate law in the field of foreign-related infringement has become a common practice in the world.
The fourth part, the common personal law of foreign-related infringement in China's legislation and its existing problems. This part mainly analyzes the provisions of the common personal law in China's current legislation, namely, the General Principles of Civil Law and the Applicable Law of Law, and stresses the following problems in the latter: the term "habitual residence" is not properly expressed and the rules are applicable. Based on the above analysis and combined with the judicial practice of our country and the experience of other countries, the article holds that the following problems should be paid attention to when amending the Law of Applicable Law in the future: paying attention to the balance between the certainty and flexibility of the choice of law; appropriately expanding the scope of application of the common personal law; increasing infringement Finally, the article proposes to amend Article 44 of the Applicable Law of Law to read: "Liability for tort shall apply to the law of the place of tort, but the law of that country shall apply if the party's habitual residence is in the same country. The application of the law shall be in accordance with its agreement. "
【學位授予單位】：西南政法大學
【學位級別】：碩士
【學位授予年份】：2011
【分類號】：D997
【引證文獻】
相關(guān)期刊論文 前1條
1 桂越喬;;試述涉外侵權(quán)關(guān)系的法律適用——結(jié)合“甬溫線7·23事故中外籍乘客索賠”評《涉外民事關(guān)系法律適用法》第44條[J];法制博覽(中旬刊);2013年01期
，本文編號：2212241
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