论我国涉外民事诉讼中外国判例的查明与适用
发布时间：2019-03-29 18:29
【摘要】：随着全球化进程的加速,涉外纠纷变得频繁,法院在审理涉外案件时常常碰到需要适用的实体法律是外国判例的情况。本文以外国判例为研究对象,采用比较法的研究方法,论述外国判例适用的必要性与可行性、外国判例的查明与适用方法以及我国在查明和适用外国判例时存在的问题及解决途径,试图构建我国查明与适用外国判例的规则,使立法更为完善、司法实践更为统一有效可行。论文正文分为三个部分。论文第一部分主要论述我国涉外民事诉讼中外国判例查明与适用的现状。首先,介绍判例的概念。本文所要论述的外国判例主要是指英美法系国家判例法中的判例,要区分案例、司法先例和判例的概念差别,明确外国判例这一概念在本文中的具体内涵。其次,介绍外国判例在我国涉外民事诉讼中查明与适用的司法实践并举例说明。最后,介绍我国学界对适用外国判例的看法。目前,我国对适用外国判例主要有四种观点：直接适用、选择适用、补充适用和不予适用。本文试图从法理上明确适用的外国法律应当包括判例,外国法律的渊源应根据该外国法确定,在英美法系国家判例是其正式法律渊源,不能因为判例不是我国的法律渊源而不予适用。论文第二部分主要论述我国涉外民事诉讼中外国判例查明与适用过程中遇到的问题。从立法及相关法律解释和司法实践方面分析外国判例在查明与适用过程中面临的问题和困难。论文第三部分主要论述上述问题的解决途径,力图构建适合我国的外国判例查明与适用规则。在比较法研究的基础上,参考借鉴外国在这些问题上已经取得的经验和成就。通过法律途径,完善国内相关立法规定。在外国判例的查明责任上,我国法院和当事人应共同承担,法院承担主要查明义务；查明方法上采实用主义,包括立法和司法解释以外的合法途径；适用外国判例时要注意判例法的特殊法律推理方法,正确适用判例中的法律规则；谨慎对待外国判例无法查明的认定；在无法查明外国判例时要平等对待中国法和外国判例法。此外,还要努力提升法官专业水平,重视国际沟通交流对正确查明与适用外国判例的积极作用。
[Abstract]:With the acceleration of globalization, the disputes concerning foreign affairs become more frequent, and the courts often encounter the fact that the applicable substantive law is foreign jurisprudence when trying foreign-related cases. Taking foreign jurisprudence as the object of study, this paper discusses the necessity and feasibility of the application of foreign jurisprudence by means of comparative law. The methods of identification and application of foreign jurisprudence as well as the problems existing in the identification and application of foreign jurisprudence in our country and the ways to solve them are trying to construct the rules for the identification and application of foreign jurisprudence in our country, so as to make the legislation more perfect. Judicial practice is more unified and effective. The main body of the paper is divided into three parts. The first part of the paper mainly discusses the status quo of the identification and application of foreign jurisprudence in China's civil litigation concerning foreign affairs. First of all, introduce the concept of jurisprudence. The foreign jurisprudence to be discussed in this paper mainly refers to the case law in common law countries. It is necessary to distinguish the concepts of cases, judicial precedents and precedents, and to clarify the specific connotation of the concept of foreign jurisprudence in this paper. Secondly, this paper introduces the judicial practice of identifying and applying foreign jurisprudence in our country's civil litigation concerning foreign affairs, and gives an example to illustrate it. Finally, this paper introduces the views of Chinese scholars on the application of foreign jurisprudence. At present, China has four views on the application of foreign jurisprudence: direct application, selective application, supplementary application and non-application. The foreign law that this article attempts to apply clearly from the legal principle should include the case law, the origin of the foreign law should be determined according to the foreign law, and the case law in the Anglo-American law system countries is its formal legal source, The case law cannot be inapplicable because it is not the legal source of our country. The second part mainly discusses the problems encountered in the process of identification and application of foreign jurisprudence in China's civil litigation concerning foreign affairs. This paper analyzes the problems and difficulties faced by foreign jurisprudence in the process of identification and application from the aspects of legislation and related legal interpretation and judicial practice. The third part of the paper mainly discusses the solutions to the above problems, and tries to construct the rules of identification and application of foreign jurisprudence suitable for our country. On the basis of comparative law research, reference is made to the experience and achievements made by foreign countries on these issues. Through the legal channels, improve the relevant domestic legislative provisions. China's courts and parties should bear the responsibility for ascertaining foreign jurisprudence, and the courts should bear the main duty of ascertaining, adopt pragmatism in the methods of ascertaining, including legal ways other than legislative and judicial interpretation; When applying foreign jurisprudence, we should pay attention to the special legal reasoning method of case law and correctly apply the legal rules in the case law, treat with caution the determination that foreign jurisprudence cannot be ascertained, and treat Chinese law and foreign case law equally when it is impossible to find out foreign case law. In addition, efforts should be made to improve the professional level of judges and attach importance to the positive role of international communication in the correct identification and application of foreign jurisprudence.
【学位授予单位】：福州大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D997.3
本文编号：2449777
[Abstract]:With the acceleration of globalization, the disputes concerning foreign affairs become more frequent, and the courts often encounter the fact that the applicable substantive law is foreign jurisprudence when trying foreign-related cases. Taking foreign jurisprudence as the object of study, this paper discusses the necessity and feasibility of the application of foreign jurisprudence by means of comparative law. The methods of identification and application of foreign jurisprudence as well as the problems existing in the identification and application of foreign jurisprudence in our country and the ways to solve them are trying to construct the rules for the identification and application of foreign jurisprudence in our country, so as to make the legislation more perfect. Judicial practice is more unified and effective. The main body of the paper is divided into three parts. The first part of the paper mainly discusses the status quo of the identification and application of foreign jurisprudence in China's civil litigation concerning foreign affairs. First of all, introduce the concept of jurisprudence. The foreign jurisprudence to be discussed in this paper mainly refers to the case law in common law countries. It is necessary to distinguish the concepts of cases, judicial precedents and precedents, and to clarify the specific connotation of the concept of foreign jurisprudence in this paper. Secondly, this paper introduces the judicial practice of identifying and applying foreign jurisprudence in our country's civil litigation concerning foreign affairs, and gives an example to illustrate it. Finally, this paper introduces the views of Chinese scholars on the application of foreign jurisprudence. At present, China has four views on the application of foreign jurisprudence: direct application, selective application, supplementary application and non-application. The foreign law that this article attempts to apply clearly from the legal principle should include the case law, the origin of the foreign law should be determined according to the foreign law, and the case law in the Anglo-American law system countries is its formal legal source, The case law cannot be inapplicable because it is not the legal source of our country. The second part mainly discusses the problems encountered in the process of identification and application of foreign jurisprudence in China's civil litigation concerning foreign affairs. This paper analyzes the problems and difficulties faced by foreign jurisprudence in the process of identification and application from the aspects of legislation and related legal interpretation and judicial practice. The third part of the paper mainly discusses the solutions to the above problems, and tries to construct the rules of identification and application of foreign jurisprudence suitable for our country. On the basis of comparative law research, reference is made to the experience and achievements made by foreign countries on these issues. Through the legal channels, improve the relevant domestic legislative provisions. China's courts and parties should bear the responsibility for ascertaining foreign jurisprudence, and the courts should bear the main duty of ascertaining, adopt pragmatism in the methods of ascertaining, including legal ways other than legislative and judicial interpretation; When applying foreign jurisprudence, we should pay attention to the special legal reasoning method of case law and correctly apply the legal rules in the case law, treat with caution the determination that foreign jurisprudence cannot be ascertained, and treat Chinese law and foreign case law equally when it is impossible to find out foreign case law. In addition, efforts should be made to improve the professional level of judges and attach importance to the positive role of international communication in the correct identification and application of foreign jurisprudence.
【学位授予单位】：福州大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D997.3
【参考文献】
相关期刊论文 前1条
1 霍政欣;;美国法院查明外国法之考察[J];北京科技大学学报(社会科学版);2007年04期
，本文编号：2449777
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