我國域外法查明制度的實證比較研究
發(fā)布時間：2018-11-09 17:15
【摘要】：隨著經濟的全球化和中國民事主體的國際經濟交往日益頻繁,我國內地法院受理的涉外民商事案件中應適用域外法律的案件日益增多。但是,由于我國內地關于域外法查明制度的法律尚不完備且缺乏具體的操作性規(guī)定,我國涉外民商事審判領域中出現了較多的違反當事人約定及沖突規(guī)范而未予查明和適用域外法的情況,導致我國民商事審判不適應我國涉外經濟的高速發(fā)展。如何在維護司法主權的前提下,完善我國內地域外法查明制度,建立行之有效且與國際接軌的域外法查明制度已成為當務之急。本文從實證角度對我國內地域外法查明制度進行比較研究,對我國內地域外法查明制度提出了建議。全文共分為六個部分： 第一部分討論了域外法的定義、范圍進行了梳理,進而對域外法查明的定義、域外法查明中的“查”和“明”的內涵,域外法查明制度的重要意義進行了深入分析,提出域外法不應僅限于外國法,域外法查明的目的不僅在于“查”更在于“明”,以解決我國內地涉外民商事審判中域外法查明存在問題。 第二部分從我國內地關于域外法查明的立法狀況入手,梳理了我國內地域外法查明制度的建立過程和主要內容,進而從實證角度解析了我國內地域外法查明制度的現狀以及存在的主要問題,并重點分析了我國內地域外法查明制度中的查明主體和查明途徑存在的問題。 第三部分從比較法和實證的角度分析了我國內地域外法查明之責任分配的理論缺陷和實踐問題,通過實證數據深入剖析了域外法查明的責任分配在司法實踐中的突出問題,進而提出了基于比較法和實證數據的制度建議。 第四部分從比較法和實證的角度分析了我國內地域外法查明途徑的理論缺陷和實踐問題,通過實證數據深入剖析了域外法查明途徑在司法實踐中的突出問題,進而提出了基于比較法和實證數據的制度建議。 第五部分從比較法和實證的角度分析了我國內地域外法無法查明的認定和處理的理論缺陷和實踐問題,探討了域外法無法查明之認定和處理的實踐問題,進而提出了制度建議。 第六部分從比較法的角度分析了我國內地域外法的錯誤適用和救濟的理論,探討了我國內地域外法的錯誤適用和救濟的司法實踐。
[Abstract]:With the globalization of economy and the increasingly frequent international economic exchanges between civil subjects in China, there are more and more cases in which foreign civil and commercial cases should be applied in Chinese mainland courts. However, due to the fact that the laws on the extraterritorial legal identification system in the mainland of China are not yet complete and lack of specific operational provisions, In the field of civil and commercial trial involving foreign affairs, there are many cases of violating the agreement of the parties and conflict norms without finding out and applying the extraterritorial laws, which leads to the fact that the civil and commercial trials in our country do not adapt to the rapid development of the foreign economy in our country. On the premise of safeguarding judicial sovereignty, it is urgent to perfect the system of finding out the extraterritorial laws in the mainland of China and to establish an effective system which is in line with the international standards. This paper makes a comparative study on the system of finding out the extraterritorial laws in the mainland of China from an empirical point of view, and puts forward some suggestions on the system of the ascertainment of the extraterritorial laws in the mainland of China. The paper is divided into six parts: the first part discusses the definition and scope of extraterritorial law, and then discusses the definition of extraterritorial law, the connotation of "investigation" and "Ming" in the identification of extraterritorial law. The importance of the system of identification of extraterritorial laws is analyzed in depth, and it is proposed that extraterritorial laws should not be limited to foreign laws, and that the purpose of identification of extraterritorial laws lies not only in "investigation" but also in "clarity", In order to solve the foreign-related civil and commercial trial in the mainland to find out the existence of problems. The second part starts with the legislative situation of the extraterritorial law identification in the mainland of China, and combs the establishment process and main content of the extraterritorial law identification system in the mainland of China. From the perspective of empirical analysis, this paper analyzes the present situation and the main problems of the system of finding out the extraterritorial laws in China's interior, and emphatically analyzes the problems of the subject of identification and the ways of finding out in the system of finding out the extraterritorial laws in the mainland of China. The third part analyzes the theoretical defects and practical problems of the responsibility allocation of the extraterritorial law in China from the perspective of comparative law and empirical analysis. Through empirical data, it analyzes the prominent problems in judicial practice of the responsibility assignment identified by the extraterritorial law. And then put forward the system suggestion based on comparative law and empirical data. The fourth part analyzes the theoretical defects and practical problems of the way of finding out the extraterritorial law in the mainland of China from the angle of comparative law and empirical analysis, and analyzes the prominent problems of the way of finding out the extraterritorial law in the judicial practice through the empirical data. And then put forward the system suggestion based on comparative law and empirical data. The fifth part analyzes the theoretical defects and practical problems which can not be found out in China's inland extraterritorial laws from the perspective of comparative law and empirical analysis, probes into the practical problems that can not be ascertained by extraterritorial laws, and then puts forward some suggestions on the system. The sixth part analyzes the theory of the wrong application and remedy of the extraterritorial law in the mainland of China from the angle of comparative law, and probes into the judicial practice of the wrong application and relief of the extraterritorial law in the mainland of China.
【學位授予單位】：復旦大學
【學位級別】：碩士
【學位授予年份】：2012
【分類號】：D997
本文編號：2321062
[Abstract]:With the globalization of economy and the increasingly frequent international economic exchanges between civil subjects in China, there are more and more cases in which foreign civil and commercial cases should be applied in Chinese mainland courts. However, due to the fact that the laws on the extraterritorial legal identification system in the mainland of China are not yet complete and lack of specific operational provisions, In the field of civil and commercial trial involving foreign affairs, there are many cases of violating the agreement of the parties and conflict norms without finding out and applying the extraterritorial laws, which leads to the fact that the civil and commercial trials in our country do not adapt to the rapid development of the foreign economy in our country. On the premise of safeguarding judicial sovereignty, it is urgent to perfect the system of finding out the extraterritorial laws in the mainland of China and to establish an effective system which is in line with the international standards. This paper makes a comparative study on the system of finding out the extraterritorial laws in the mainland of China from an empirical point of view, and puts forward some suggestions on the system of the ascertainment of the extraterritorial laws in the mainland of China. The paper is divided into six parts: the first part discusses the definition and scope of extraterritorial law, and then discusses the definition of extraterritorial law, the connotation of "investigation" and "Ming" in the identification of extraterritorial law. The importance of the system of identification of extraterritorial laws is analyzed in depth, and it is proposed that extraterritorial laws should not be limited to foreign laws, and that the purpose of identification of extraterritorial laws lies not only in "investigation" but also in "clarity", In order to solve the foreign-related civil and commercial trial in the mainland to find out the existence of problems. The second part starts with the legislative situation of the extraterritorial law identification in the mainland of China, and combs the establishment process and main content of the extraterritorial law identification system in the mainland of China. From the perspective of empirical analysis, this paper analyzes the present situation and the main problems of the system of finding out the extraterritorial laws in China's interior, and emphatically analyzes the problems of the subject of identification and the ways of finding out in the system of finding out the extraterritorial laws in the mainland of China. The third part analyzes the theoretical defects and practical problems of the responsibility allocation of the extraterritorial law in China from the perspective of comparative law and empirical analysis. Through empirical data, it analyzes the prominent problems in judicial practice of the responsibility assignment identified by the extraterritorial law. And then put forward the system suggestion based on comparative law and empirical data. The fourth part analyzes the theoretical defects and practical problems of the way of finding out the extraterritorial law in the mainland of China from the angle of comparative law and empirical analysis, and analyzes the prominent problems of the way of finding out the extraterritorial law in the judicial practice through the empirical data. And then put forward the system suggestion based on comparative law and empirical data. The fifth part analyzes the theoretical defects and practical problems which can not be found out in China's inland extraterritorial laws from the perspective of comparative law and empirical analysis, probes into the practical problems that can not be ascertained by extraterritorial laws, and then puts forward some suggestions on the system. The sixth part analyzes the theory of the wrong application and remedy of the extraterritorial law in the mainland of China from the angle of comparative law, and probes into the judicial practice of the wrong application and relief of the extraterritorial law in the mainland of China.
【學位授予單位】：復旦大學
【學位級別】：碩士
【學位授予年份】：2012
【分類號】：D997
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相關期刊論文 前3條
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，本文編號：2321062
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