属人法连结点的适用比较

发布时间：2018-08-03 18:23

【摘要】：在国际私法中,属人法连结点的适用直接关系到涉外民商事法律关系当事人的切身利益,对涉外私法关系起着决定性的作用。因为,在同一涉外民商事法律关系的准据法的确定中,采用不同的属人法标准,即选择不同的连结点,往往会得出不同甚至截然相反的结果；并且,属人法连结点本身在不同国家尚存在不同的认定标准,如住所、惯常居所的确定等。因而,即便对同一涉外民商事法律关系的准据法的确定采用同一属人法连结点,也可能会因认定的不同而得出不一致的结果。此外,属人法各连结点还是判定涉外民商事法律关系和确定国际管辖权的重要依据。可见,属人法连结点在国际私法中具有着十分重要的意义。然而,目前学界对该问题的研究侧重不一,并且尚不够全面和系统,尤其缺乏对属人法连结点确立的原则和具体适用方法的比较研究。另外,对惯常居所的确定标准的讨论也不多。故此,加强对属人法连结点的深入研究无疑是十分重要和必要的。在“国籍”的观念还不占主要地位的时代,住所曾是属人法确立的第一个标准。自13世纪的“法则区别说”起至1804年的《法国民法典》出台前的约600年间,住所一直作为属人法的唯一连结点被使用。然而,1804年《法国民法典》的出台打破了这种独秀一枝的局面,国籍作为连结点首次出现在该法之中,后经意大利政治学家兼法学家孟西尼的倡导,国籍作为属人法连结点在欧洲大陆国家迅速得以确立,是为本国法主义。与此同时,英美等普通法系国家却仍然坚持以住所作为属人法的连结点,是为住所地法主义。自此,两大法系在属人法标准的确立问题上产生了重大分歧。后来,随着经济和社会的发展,越来越多的人走出国门而定居国外,甚至在那儿终其一生而不再归国,这时其与住所地国的联系较国籍国则更为密切。因此,一些大陆法系国家,如瑞士,在属人法连结点的确立上一改先前的本国法主义而往住所靠近。但国籍与住所的冲突毕竟还是阻碍了国际私法的统一化进程。因此,为解决这一问题,在国际社会的努力下,确定属人法的一个新标准,即惯常居所地法便应运而生。其开始主要被用于海牙国际私法会议通过的一系列国际公约中,后也被越来越多的国内立法所采用。自此,确定属人法的标准主要有国籍、住所和惯常居所这么三个连结点,尽管在属人法领域的准据法的确定中也出现有居所和现在(所在)地等连结点。那么,属人法的连结点究应如何确立呢?在将24个国家的相关国内立法及24个国际私法公约作比较研究后,得出结论认为：第一,当前大多数国家在属人法连结点的确立问题上都采取审慎的态度,一般都反对采取单一选择制原则,即不绝对地以国籍、住所或惯常居所中的任何一个作为所有属人事项的准据法确定的唯一或单一连结点；而往往采取的是根据不同情况适用不同方法采用不同连结点的多元选择制原则。第二,在各连结点的具体适用方法上,一般也不采用单一连结点的方法,而采用较多的是以其中的一个连结点为主而予以首选适用,而以其他连结点作为其补充而予以依次适用；或者采用任意选择的方法,将两个或更多的连结点作为并列的连结点予以任意选择适用。第三,至于惯常居所,一般是要么作为国籍或住所的补充连结点被予以依次适用的,要么与国籍、住所等连结点并列而被予以任意选择适用,而较少作为首选连结点或单一连结点被予以适用。因此,可以预测,惯常居所作为连结点在国际私法立法中出现的频率会越来越高,其在国际私法中的地位和作用也会因此而得以不断加强。尽管如此,可以断言,惯常居所在未来相当长的一段时期内不管是在普通法系国家还是在大陆法系国家都不会绝对地取代国籍或住所而成为属人法确立的唯一标准,其主要还是作为一个辅助性的连结点被予以适用的,尤其是在传统的属人法领域。因为,属人法乃附随于人而适用的法律,自应以一定程度的可确定性为考虑因素。然而,惯常居所这个概念目前还没有明确的、统一的定义,因此界定该概念的任务或权力便落在了法官们的身上。而过多的自由裁量权实难平衡法律的稳定性或可预见性与灵活性之间的关系。我国于2010年出台了《涉外民事关系法律适用法》,这是我国第一部关于国际私法的单行立法,对整个国家法律体系的建立具有重要的意义。通过对该法条文的逐一统计和分析发现：该法在属人法连结点的确立上采用的是多元选择制原则,这是非常值得肯定的地方；然而,该法大量使用“经常居所”作为相关事项准据法确定的单一连结点和首选连结点；国籍也多是作为辅助性的连结点而出现的；住所连结点根本没被采用。这种在属人法连结点的确立上无视住所、轻视国籍、过于倚重经常居所的做法实难找到合理的解释；况且,经常居所作为属人法连结点在我国立法中找不到合理的依据,也与国际通行用语不一致；另外,该法在属人法的具体适用方面还存在连结点欠缺等问题。然而,法律的出台总凝聚着不少人的心血,不能一味地责难,研究的目的是为了更好地将之完善。当务之急,便是确定对“经常居所”的概念界定。参照国际上通行的“惯常居所”的概念的确定,主要有两种标准：一种是要求一定程度的定居意图的主观标准；一种是综合分析客观经历和具体环境的客观标准。主观标准容易使其成为像住所概念那样的技术性术语；客观标准强调的是当事人与某一地域的实质联系,这既符合国际私法中的最密切联系原则,也使得惯常居所易于确定,故建议我国司法实践也以此为鉴。
[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.
【学位授予单位】：湖南师范大学
【学位级别】：博士
【学位授予年份】：2012
【分类号】：D997

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