货币债务跨国履行的法律问题研究
发布时间：2018-08-03 12:16
【摘要】：几乎所有的国际经贸合同都会涉及货币债务的跨国履行问题,而且国际范围内的损害赔偿和恢复原状等救济措施大多都通过货币偿付予以实现。但也许是人们对这些现象已经习以为常,所以往往会忽视货币债务跨国履行问题的复杂性。基于这一考虑,本文拟对这些问题进行梳理,通过分析相关法律原则和实践经验,试图提出解决这些问题的具体办法。 本文共五章。第一章对与“货币债务跨国履行”有关的基本概念作了厘清,对于货币法这一比较“偏远”的领域,首先对这些概念进行界定是非常必要的。在此基础上,本章指出了货币债务跨国履行的特殊性即货币主权因素,并将其作为整篇文章的主线展开讨论。第二章是关于货币债务跨国履行所依据的基本法律原则,这是整篇文章的理论基础,该章所阐明的两个基本原则在其后三章中都有所体现,而且也是解决后续具体问题的理论基础。第三、四、五章相当于本文的分论。实践中,货币债务跨国履行遭遇的风险主要包括贬值、外汇管制和外币债务判决等,这三章分别针对这三个方面进行阐述、分析和论证。具体而言,本文的基本结构和主要内容表述如下： 第一章是对“货币债务履行”涉及的基本概念的界定,包括货币、货币债务和货币债务的履行等。本章首先明确了“货币”的含义,然后在考察货币经济功能的基础上,引出货币的相关理论。货币的功能与相关理论之间相互作用,并由此发展出一系列新的货币形式,从而赋予货币更加广泛的法律含义。“货币债务”的承认比界定更容易些,本章首先分析总结了货币债务的特点,并以此为根据对其作了界定。确定货币债务主要包括两个方面,一是货币债务的价格,二是表示此价格的货币即记账货币,本章就这两个方面分别作了讨论。“货币债务跨国履行”过程中会牵涉很多问题,大致包括支付的时间、地点和货币等三个方面。这些问题主要由各国民商法具体规定,国际上并没有统一的解决办法,本章主要从宏观上对这些问题作了简要论述。本章最后指出货币债务跨国履行最大的特殊性——货币主权,并围绕该特殊性阐明本文将要讨论的内容。 第二章讨论跨国货币债务履行中的两个基本法律原则,即唯名主义和货币法则,这是后面三章的理论基础。货币价值在合同签订日和到期日之间可能发生变动,而债务人只要偿付名义价值即可,无需考虑该变动情况,这便是唯名主义原则：而货币法则指的是在界定货币本身或者货币体系时,必须适用货币发行国的法律。唯名主义是货币法的基本原则,货币法则也已经成为习惯国际法规则,这两个原则贯穿于货币债务跨国履行的始终,并且对于法院判决具有重要的理论指引作用。本章试图探寻这两个法律原则的含义、性质和实践状况,并对他们进行对比分析,从而阐明它们在货币债务跨国履行中的实践意义。 货币贬值是目前全球最紧迫的经济和社会问题之一,不论是经济状况相对稳定还是不稳定的国家,都不同程度地承受贬值的风险。第三章专门针对货币债务履行过程中的贬值问题提供解决途径——重新估价与保值条款。该章首先从重新估价的理论基础谈起,并对国际货币史上两次典型的重新估价作了介绍、分析、对比和评价,在此基础上论证了其可行性与科学性。然后,本章专门介绍了先后出现的几种保值条款,对其中使用率最高的黄金条款和指数条款作了深入探讨,在此基础上评价并展望了其发展趋势。 第四章讨论货币债务跨国履行过程中的外汇管制问题。虽然《国际货币基金协定》将取消外汇管制作为其宗旨之一,但是由于各国都要维护本国的货币主权和经济利益,所以该协定仍然承认各成员国外汇管制措施的国际法效力。外汇管制在国际商事交易中发挥着非常重要的作用,对货币债务的跨国履行会产生多方面的影响,例如可以使货币支付非法,阻止货币债务履行,或者对履行方式产生影响等。本章首先从外汇管制的历史发展、法律依据和法律限制谈起,然后探讨了《国际货币基金协定》第8条第2款(b)中几个关键词的实践含义,最后对外汇管制的国际私法规则进行了梳理、分析和评价。 第五章讨论货币债务跨国履行的争议解决——外币债务判决。法院地货币／违约日规则曾经被认为是英美法系外币债务判决的基本原则,并且对很多大陆法系国家产生过重要影响,这种状况一直持续到1975年英国上议院的Miliangos案才发生改变。Miliangos案及其后的一系列案件将外币债务判决的货币规则发展为：法院可以用外国货币作出判决,或者按照实际支付日的汇率,将外国货币折算成本国货币进行判决。本章以Miliangos案为线索,将问题划分为货币的选择和兑换日的选择两个方面,并以这两个方面为基点继续延伸,讨论它们的发展变化、各国实践和国际国内的立法情况。在这一过程中,本章结合货币债务的基本理论,深入探讨了外币债务判决的准确性、公正性、预见性和灵活性等问题,最后对外币债务判决的国际化趋势进行了分析和评价。
[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.
【学位授予单位】：武汉大学
【学位级别】：博士
【学位授予年份】：2011
【分类号】：D996.1
本文编号：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.
【学位授予单位】：武汉大学
【学位级别】：博士
【学位授予年份】：2011
【分类号】：D996.1
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