海峡两岸民商事法律冲突之解决路径

发布时间：2018-05-29 10:21

  本文选题：海峡两岸 + 民商事　； 参考：《华东政法大学》2014年博士论文

【摘要】：近年来,随着海峡两岸政治关系的缓和,两岸民商事交流日益密切,法律冲突现象明显。从历史角度看,调整两岸关系的法律受制于两岸政治关系,并分别形成了两个独立的法域。在当前两岸合作关系背景下,如何降低政治因素对海峡两岸民商事交流的不利影响,以法律手段化解两岸法律冲突、推动两岸民商事交流、构建互信的两岸关系成为值得关注的问题,并成为本文的研究主题。在论证思路与观点方面,本文以海峡两岸合作关系为背景,研究化解海峡两岸民商事领域法律冲突的路径,论证了通过区际法律冲突的单向立法、两岸协商和个案解决等多层面路径解决两岸民商事法律冲突的必要性与可行性。两岸特殊的政治关系使得两岸在各自法域内以冲突规范的方式化解两岸民商事法律冲突仍具有主导性的作用。两岸关系的缓和推动了两岸民商事关系从传统民事关系领域向经贸关系等商事领域发展,这两个领域的差别决定了两岸协商在化解当前两岸民商事法律冲突、推动两岸互信的进程中具有重要地位,海峡两岸金融、投资、知识产权保护和司法协助制度安排都体现这一点。包括两岸律师事务所在内的私人在个案中的互动这一路径对降低两岸政治因素影响、化解两岸民商事法律冲突在当前具有重要的作用。本文认为,大陆地区、台湾地区分别以司法解释和《台湾地区与大陆地区人民关系条例》(以下简称“《两岸关系条例》”)这一立法来调整两岸民商事法律冲突问题,双方有必要在各自的立法层面分别承认对方法域民商事法律的效力。在论文结构安排上,本文共分引论、本论和结论三大部分。引论部分主要论证为什么要研究这个问题以及研究的安排。本论部分包括论文的第一章至第七章。第一章主要通过展示台湾地区、台湾法律的特殊性来论证两岸分别为独立的法域,两岸民商事法律冲突具有特殊性。第二章论证了通过两岸协商、单向立法和个案解决这三条路径解决海峡两岸民商事法律冲突的可能性。其中,着重论证通过区际冲突法这一路径来解决两岸法律冲突的观点,特别是论证台湾作为未获得国际社会承认的实体,大陆承认台湾地区的民商事法律的可行性。第三章至第六章主要实证两岸民商事法律冲突的解决路径中,单向方法存在局限性,应重视两岸协商等路径在新时期解决两岸民商事法律冲突的重要作用。其中,第三章从区际冲突法的角度考察了《两岸关系条例》的缘起、地位和内容特点,论证了台湾地区利用单向方法解决两岸民商事法律冲突在很大程度上受到了政治因素的制约。第四章与第五章则从两岸冲突法律制度、传统民事领域冲突规范之差异角度论证单向方法存在的局限性。第六章从两岸商事法律冲突的角度论证两岸协商路径的重要性。两岸协商推动的两岸商事交流的兴起及其引发的商事法律冲突所具有的独特性,需要两岸注重通过两岸协商的方式来解决民商事法律冲突。第七章则从司法协助制度论证了两岸协商对解决两岸民商事法律冲突的重要作用。结论部分指出了单向立法、两岸协商和个案解决这三条路径在化解海峡两岸民商事法律冲突中的重要性,大陆地区可以考虑在立法层面对台湾地区的民商事法律的效力予以明确承认,并应注重通过两岸协商路径来解决单向立法所面临的困境。
[Abstract]:In recent years, with the easing of political relations between the two sides of the Taiwan Straits, the civil and commercial exchanges between the two sides of the Straits are increasingly close and the conflict of law is obvious. From a historical point of view, the law on the adjustment of cross-Straits relations has been subject to the political relations between the two sides of the Straits and formed two separate jurisdictions. The disadvantageous influence of the civil and commercial exchanges, dissolving the legal conflicts between the two sides of the Straits by legal means, promoting the exchange of civil and commercial affairs between the two sides of the Straits and building the mutual trust between the two sides of the Straits has become a matter of concern, and become the subject of this study. In the field of thinking and views, the paper studies and defuses the civil and commercial fields between the two sides of the Taiwan Straits. The path of the conflict of law demonstrates the necessity and feasibility of solving the conflicts between the two sides of the two sides of the Straits through the unilateral legislation of the interregional conflict of law, the cross straits consultation and the case settlement. The special political relations between the two sides make the two straits dissolve the civil and commercial legal conflicts in the way of conflict in their respective jurisdictions. The moderating relationship between the two sides of the Straits has promoted the development of the civil and commercial relations between the two sides of the Straits from the traditional civil relations to economic and trade relations. The differences between the two fields determine the importance of the cross-straits consultation in the process of resolving the current civil and commercial legal conflicts and promoting mutual trust between the two sides of the Straits, and the cross straits finance and investment, The protection of intellectual property and the arrangement of the judicial assistance system all reflect this. The path of the interaction between private and private law firms in the case has an important role in reducing the influence of the political factors between the two sides of the Straits and resolving the conflicts between the two sides of the civil and Commercial Law. The law of the people's relations between the Taiwan and the mainland (hereinafter referred to as "the regulations of the cross-strait relations") is a legislation to adjust the civil and commercial conflicts between the two sides of the Straits. It is necessary for both sides to recognize the effectiveness of the civil and commercial law of the method domain separately in their respective legislative levels. In the structure of the paper, this article is divided into three parts. The introduction part mainly demonstrates why we need to study the problem and the arrangement of the research. The first chapter includes the first chapter to the seventh chapter of the thesis. The first chapter mainly demonstrates the independence of the two straits by demonstrating the particularity of the Taiwan region and the Taiwan law, and the conflict of the law of the two sides of the two sides of the Taiwan Straits is special. The second chapter demonstrates the fact that the conflict between the two sides of the Taiwan Straits is special. Cross Straits consultation, one-way legislation and case solution to solve the three ways to solve the possibility of civil and commercial conflicts between the two sides of the Taiwan Straits. Among them, the point of view of solving the conflict between the two sides of the Straits through the interregional conflict of laws is emphasized, especially in Taiwan as an entity that has not been recognized by the international community, and the mainland acknowledges the civil and commercial affairs of the Taiwan region. The third chapter to the sixth chapter is the main demonstration of the settlement path of the civil and commercial legal conflicts between the two sides. There are limitations in the one-way method. We should attach importance to the important role of the cross-straits negotiation in the new period to solve the conflicts between the two sides of the Taiwan Straits and commercial law. The third chapter examines the origin of the regulations of the cross-strait relations from the perspective of the interregional conflict law. The characteristics of status and content demonstrate that the use of one-way method to solve the conflict of civil and commercial law in Taiwan is greatly restricted by the political factors. The fourth chapter and the fifth chapter demonstrate the limitation of the existence of the single direction method from the legal system of the cross straits conflict and the differences of the traditional civil conflict norms. The sixth chapter is from the cross straits merchants. The importance of the negotiation between the two sides of the two sides is demonstrated by the conflict of law. The rise of the commercial and commercial exchanges between the two sides of the two straits and the uniqueness of the conflict of business laws, which are initiated by the two sides, need to be paid attention to the settlement of civil and commercial conflicts through cross-Straits negotiation. The seventh chapter demonstrates the negotiation between the two sides of the two sides from the system of judicial assistance. To solve the important role of the civil and commercial legal conflicts between the two sides of the Straits, the conclusion part points out the importance of one-way legislation, cross straits consultation and case settlement of the three paths in resolving the importance of the civil and commercial legal conflicts between the two sides of the Taiwan Straits. The mainland region can consider clearly the effect of the legislative level on the legal effect of civil and commercial law in the Taiwan region, and should pay attention to it. Cross strait consultation path to solve the dilemma faced by one-way legislation.
【学位授予单位】：华东政法大学
【学位级别】：博士
【学位授予年份】：2014
【分类号】：D922.29
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本文编号：1950522