论涉外侵权的共同属人法
发布时间：2018-08-29 19:52
【摘要】：随着《涉外民事关系法律适用法》(下称《法律适用法》)的颁布,我国法院在审理涉外侵权案件时,在法律选择上将出现重大变化。根据该法第44条规定,如果当事人具有共同经常居所地,而他们在侵权行为发生后又没有达成法律选择协议,那么法院应适用当事人共同经常居所地法。该条规定,改变了《民法通则》第146条中当事人的共同属人法是由法官选择适用的做法。这一变化,为我国国际私法研究提出了新的问题——如何对共同属人法这一特殊冲突规范在涉外侵权领域的适用予以评估。即该规则是在什么样的背景下产生的?其产生的理论根据是什么?在当今世界各国的国际私法立法和司法实践,该规则是如何被加以运用的?单纯适用该规则可能存在哪些问题?本文将尝试解答上述问题。在写作思路上,本文拟从两个维度展开论述:其一,纵向的历史维度。即从涉外侵权行为法律选择规则发展史的角度,论述共同属人法产生的背景及其确立的理论基础。其二,横向的比较法维度。即通过比较该规则在两大法系的运用,尝试指出该规则在成文国际私法立法中可能存在的问题和解决方法。以此为基础,本文在最后将结合我国涉外审判法律适用的现状,对《法律适用法》第44条中的共同属人法规定予以评析,并提出完善建议。在结构上,本文分为四部分: 第一部分,涉外侵权法律选择的属地主义传统。本部分主要回顾了涉外侵权法律选择的三个传统的冲突法规范——侵权行为地法、法院地法和双重可诉规则。文章试图指出,尽管这些规则在理论基础和适用效果上迥然有别,但它们却有一个共同的特点——强调地域与涉外侵权法律关系的重要联系。因此,可以说传统的法律选择规则无一不具有浓重的属地主义色彩,而当事人属人因素则不在法律选择的考虑范围之内。之所以如此,是与20世纪之前特定的社会条件和法律观念密切相关联的。 第二部分,共同属人法在涉外侵权法律选择中的确立。本部分主要分析了共同属人法在美国司法实践中确立的历史背景、理论基础和具体过程。人类在20世纪全面进入工业社会,从而使原来简单的社会经济结构变得日益复杂。各类新型侵权行为的出现,促使侵权行为的归责原则和赔偿体系发生了巨大变化。侵权行为实体法是侵权行为冲突规范的根基。实体法的变革必然会对原有的法律选择规则产生影响。而在美国,这种影响与法律现实主义结合,爆发了旨在改变传统法律选择规则的冲突法革命。在涉外侵权领域,这场革命的主要成果之一即是共同属人法的出现。卡弗斯“根据实体法律的内容进行选择”的思想,不仅批判了传统冲突规则,也为新规则的出现指明了道路。艾伦茨威格对行为管制规则和损害分担规则的区分,首次阐明了属人因素应在法律选择过程中被加以考虑的理由。而柯里的“政府利益分析”理论,则为法官在实践中比较取舍存在冲突的实体法提供了方法论支撑。学术界的新理论为美国法院提供了强大思想支援,最终使纽约最高法院在巴布考克案判决中,抛弃了传统的侵权行为地法,适用了当事人的共同属人法 第三部分,欧美各国关于涉外侵权共同属人法的立法和实践。本部分主要介绍自20世纪60年代以来,共同属人法在美国的司法实践和在欧洲大陆的立法。在美国,法院适用当事人共同属人法有如下特点:其一,规则化倾向,如纽约州法院通过纽梅尔规则将该做法规则化,并在舒尔茨案中将其扩大适用于所有侵权案件;其二,适用共同属人法不考虑实体结果;其三,将共同属人法类推适用于相类似的案件。而在欧洲大陆,各国受美国冲突法革命的影响,也纷纷将共同属人法引入到它们的国际私法立法中。鉴于该规则已成为各国的共识,故在2007年颁布的旨在统一欧盟各国在非合同之债领域法律选择的《欧洲议会与欧盟委员会关于非同义务法律适用条例》(《罗马条例II》)第4条第2款中,规定了共同属人法对涉外侵权的适用。由此,可以认为共同属人法在涉外侵权领域的适用,已是世界各国的普遍做法。 第四部分,我国立法中的涉外侵权共同属人法及其存在的问题。本部分主要对我国现行立法即《民法通则》和《法律适用法》中的共同属人法规定予以了分析,并着重指出了后者存在如下问题:“经常居所地”这一用语表述欠妥、规则适用范围过于狭窄和稍欠灵活性。基于上述分析,并结合我国司法实践和各国的经验,文章认为未来对《法律适用法》进行修改时,应注意如下问题:注重法律选择的确定性和灵活性的平衡;可考虑适当扩张共同属人法的适用范围;增加对侵权行为的行为管制规则予以考虑的条款;采用“惯常居所地”的表述。最后,文章建议将《法律适用法》第44条修改为:“侵权责任,适用侵权行为地法律。但当事人的惯常居所地位于同一国的,适用该国法律。侵权行为发生后,当事人协议选择适用法律的,按照其协议。”
[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. "
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D997
本文编号：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. "
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D997
【引证文献】
相关期刊论文 前1条
1 桂越乔;;试述涉外侵权关系的法律适用——结合“甬温线7·23事故中外籍乘客索赔”评《涉外民事关系法律适用法》第44条[J];法制博览(中旬刊);2013年01期
，本文编号：2212241
本文链接：https://www.wllwen.com/falvlunwen/guojifa/2212241.html
