我国域外法查明制度的实证比较研究
发布时间：2018-11-09 17:15
【摘要】：随着经济的全球化和中国民事主体的国际经济交往日益频繁,我国内地法院受理的涉外民商事案件中应适用域外法律的案件日益增多。但是,由于我国内地关于域外法查明制度的法律尚不完备且缺乏具体的操作性规定,我国涉外民商事审判领域中出现了较多的违反当事人约定及冲突规范而未予查明和适用域外法的情况,导致我国民商事审判不适应我国涉外经济的高速发展。如何在维护司法主权的前提下,完善我国内地域外法查明制度,建立行之有效且与国际接轨的域外法查明制度已成为当务之急。本文从实证角度对我国内地域外法查明制度进行比较研究,对我国内地域外法查明制度提出了建议。全文共分为六个部分： 第一部分讨论了域外法的定义、范围进行了梳理,进而对域外法查明的定义、域外法查明中的“查”和“明”的内涵,域外法查明制度的重要意义进行了深入分析,提出域外法不应仅限于外国法,域外法查明的目的不仅在于“查”更在于“明”,以解决我国内地涉外民商事审判中域外法查明存在问题。 第二部分从我国内地关于域外法查明的立法状况入手,梳理了我国内地域外法查明制度的建立过程和主要内容,进而从实证角度解析了我国内地域外法查明制度的现状以及存在的主要问题,并重点分析了我国内地域外法查明制度中的查明主体和查明途径存在的问题。 第三部分从比较法和实证的角度分析了我国内地域外法查明之责任分配的理论缺陷和实践问题,通过实证数据深入剖析了域外法查明的责任分配在司法实践中的突出问题,进而提出了基于比较法和实证数据的制度建议。 第四部分从比较法和实证的角度分析了我国内地域外法查明途径的理论缺陷和实践问题,通过实证数据深入剖析了域外法查明途径在司法实践中的突出问题,进而提出了基于比较法和实证数据的制度建议。 第五部分从比较法和实证的角度分析了我国内地域外法无法查明的认定和处理的理论缺陷和实践问题,探讨了域外法无法查明之认定和处理的实践问题,进而提出了制度建议。 第六部分从比较法的角度分析了我国内地域外法的错误适用和救济的理论,探讨了我国内地域外法的错误适用和救济的司法实践。
[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.
【学位授予单位】：复旦大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D997
本文编号：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.
【学位授予单位】：复旦大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D997
【参考文献】
相关期刊论文 前3条
1 王葆莳;;论我国涉外审判中“专家意见”制度的完善[J];法学评论;2009年06期
2 韩向东;王娟;;审判实践视野下的外国法查明制度重构[J];山东审判(山东法官培训学院学报);2006年05期
3 郭玉军;;近年中国有关外国法查明与适用的理论与实践[J];武大国际法评论;2007年02期
，本文编号：2321062
本文链接：https://www.wllwen.com/falvlunwen/guojifa/2321062.html
