论意思自治原则在涉外婚姻家庭关系中的适用
发布时间：2018-07-25 16:38
【摘要】：意思自治原则最早由谁提出在学界并无定论,但该原则自16世纪由法国学者杜摩兰提出来之后方引起国际社会的广泛关注并引发激烈的争论则是不争的事实。该原则原本主要适用于涉外合同关系,即涉外合同关系的当事人可以共同协议选择适用于涉外合同关系的法律。由于该原则符合资本主义自由贸易的需要以及近现代契约自由和人权理论的兴起,意思自治原则的适用范围远远超出了涉外合同关系领域,正在不断地向诸如涉外侵权行为领域、涉外信托关系领域、涉外婚姻家庭关系领域,乃至涉外动产物权关系等领域快速地拓展。我国《涉外民事关系法律适用法》认真审视了该原则的适用范围快速拓展这一客观现实,于该法中不仅将意思自治原则作为一般法律适用条款予以规定,而且在规定具体的涉外民事关系之法律适用中涉及14种涉外民事关系可以适用意思自治原则。就涉外婚姻家庭关系而言,该法明确规定涉外协议离婚、涉外夫妻财产关系可以适用意思自治原则,而对于涉外结婚的形式要件、涉外扶养关系、涉外夫妻人身关系等领域并未明确规定可以适用意思自治原则。从国际社会新近的国际私法立法与实践来看,诸多国家将意思自治原则适用于上述涉外婚姻家庭关系。基于此,本人以“论意思自治原则在涉外婚姻家庭关系中的适用”为选题,首先阐述意思自治原则适用于涉外婚姻家庭关系的理论依据,继而阐释意思自治原则适用于涉外婚姻家庭关系的范围,然后重点研讨了我国关于意思自治原则适用于涉外婚姻家庭关系的立法特点和主要缺憾,并就如何完善我国关于意思自治原则适用涉外婚姻家庭关系的立法与实践提出了一些具体建议,企盼能对我国相关国际私法立法的完善,从而及时、妥善地处理涉外婚姻家庭关系方面的争议有所裨益。全文除导论和结语外,主要包括以下几个部分:第一部分,阐释意思自治原则适用于涉外婚姻家庭关系的理论依据。在涉外婚姻家庭关系法律适用中引入意思自治原则的理论依据主要包括:婚姻契约自由理论,该理论认为,涉外婚姻关系在本质上仍属于涉外契约关系,既然婚姻关系当事人可以依据双方的意思表示缔结婚姻家庭关系契约,完全也可以依据双方当事人的意思表示共同协议选择涉外婚姻家庭关系的法律适用;私权自治理论,该理论认为,婚姻家庭关系是典型的民商事关系,按照西方法学对法律的分类标准,调整民商事关系的法律应属于私法,而私法领域通常国家公权不应介入其中,即私权自治,故涉外婚姻家庭关系理应可以适用当事人意思自治原则。现代人权理论认为,应当以人为本位,尊重人的自由和平等权利,尊重人的意思自治,故,以自然人为主体的婚姻家庭关系理应适用意思自治原则。第二部分,阐述意思自治原则适用于涉外婚姻家庭关系的范围。尽管各国的相关国际私法立法与实践不尽相同,但意思自治原则主要适用于涉外婚姻家庭关系的如下方面:涉外结婚的形式要件;涉外夫妻关系,它包括涉外夫妻人身关系和涉外夫妻财产关系;涉外离婚关系和涉外扶养关系等。第三部分,研讨我国关于意思自治原则适用于涉外婚姻家庭关系的立法特点和主要缺憾。迄今为止,我国关于意思自治原则适用于涉外婚姻家庭关系的立法主要见之于《民法通则》、《涉外民事关系法律适用法》等民事立法之中。这些法律仅仅规定意思自治原则适用于涉外夫妻财产关系和涉外协议离婚关系等,而对于意思自治原则是否可以适用于涉外结婚的形式要件、涉外夫妻人身关系和涉外扶养关系并无明确的法律规定,且对意思自治原则适用于上述涉外婚姻家庭关系并无明确的限制。第四部分,论述我国关于意思自治原则适用于涉外婚姻家庭关系的立法完善。基于上述研讨和国际社会新近的相关国际私法立法与实践,笔者认为,我国在将来修订相关国际私法立法时,应当将意思自治原则扩展适用于如下领域:涉外结婚的形式要件;涉外夫妻人身关系;涉外扶养关系、涉外离婚关系等领域,同时应当对意思自治原则适用于上述领域做出明确的、必要的限制,从而为妥善处理涉外婚姻家庭关系方面的争议提供更为科学的法律依据。
[Abstract]:The principle of autonomy was first proposed in the academic world, but it was an indisputable fact that the principle was brought out by the French scholar Du Molan in sixteenth Century and caused a fierce debate. The principle was originally applied to foreign contractual relations, that is, the parties involved in foreign contractual relations can jointly cooperate. Because the principle conforms to the needs of the free trade of capitalism and the rise of the modern freedom of contract and the theory of human rights, the scope of the principle of autonomy of autonomy is far beyond the field of foreign contractual relations, and is constantly moving to the field of foreign torts, such as the foreign-related field of trust, and the field of trust relations, The field of foreign marriage and family relations, and even the relation of real right of foreign movable property has been expanded rapidly. China's law applicable to the law of civil relations concerning foreign affairs has carefully examined the objective reality of the application of this principle. In this law, it not only stipulates the principle of autonomy as the applicable clause of general law, but also stipulates that the principle is applicable. In the legal application of the foreign-related civil relations, 14 kinds of foreign-related civil relations can be applied to the principle of autonomy of the meaning. In terms of marriage and family relations involved in foreign affairs, the law clearly stipulates the divorce in the foreign-related agreement, the property relationship of the husband and wife involved in foreign affairs may apply the principle of autonomy of autonomy, and the form elements of the foreign marriage, the relationship of foreign support and the husband and wife involved in foreign affairs. On the basis of the new international private law legislation and practice, many countries apply the principle of autonomy to the above-mentioned foreign marriage and family relations. Based on this, I choose the topic of "the application of the principle of autonomy in the relationship of marriage and family in foreign affairs", first of all, This paper expounds the theoretical basis of the principle of autonomy for the application of the principle of autonomy to the relationship between foreign marriage and family, then explains the scope of the application of the principle of autonomy to the relationship between foreign marriage and family, and then focuses on the legislative characteristics and shortcomings of our country on the application of the principle of autonomy to the relationship between foreign marriage and family, and how to perfect our country's meaning. The principle of autonomy applies to the legislation and practice of the relationship between foreign marriage and family and puts forward some specific suggestions. It is expected to be beneficial to the improvement of relevant international private law legislation in China, so as to timely and properly deal with disputes concerning foreign marriage and family relations. The full text includes the following parts except introduction and conclusion: the first part, interpretation The theoretical basis for the application of the principle of autonomy to the relationship between marriage and family involved in foreign affairs. The theoretical basis for introducing the principle of autonomy in the legal application of marriage and family relations involved in foreign affairs mainly includes the theory of freedom of marriage contract. The theory holds that the relationship of marriage in foreign affairs is still in essence the contractual relationship of foreign affairs, since the parties to the marriage may be based on the basis of the theory. The meaning of the two parties means to conclude the contract of marriage and family relations, and it can also be used to choose the legal application of the relationship of foreign marriage and family according to the mutual agreement of the parties, and the theory of autonomy of private rights. The theory holds that the relationship between marriage and family is a typical civil and commercial relationship, and the civil and commercial standards are adjusted according to the classification standard of law to the law in the western jurisprudence. The law of the relationship should belong to the private law, and the private law field usually should not intervene in it, that is, private autonomy, so the relationship between the marriage and family should be applicable to the principle of party autonomy. Modern human rights theory holds that it should be people-oriented, respect human freedom and equal rights, and respect human autonomy, so the natural person is a natural person. The principle of autonomy of meaning should be applied to the relationship of marriage and family for the main body. The second part is to elaborate the scope of the principle of autonomy for the application of the principle of autonomy to the relationship between marriage and family involved in foreign affairs. Although the legislation and practice of relevant international private law in various countries are different, the principle of autonomy mainly applies to the following aspects of the relationship of foreign marriage and family: the form of marriage involving foreign affairs. The third part of the relationship between husband and wife involved in foreign affairs, including the relationship between husband and wife and husband and wife, property relations of foreign husband and wife, the relationship of foreign divorce and the relationship between foreign support and so on. The paper discusses the legislative characteristics and main shortcomings of the principle of meaning autonomy applicable to the relationship of foreign marriage and family. The legislation of external marriage and family relations is mainly seen in the general principles of the civil law, the law applicable to the civil relations of foreign affairs, and other civil legislation. These laws only stipulate that the principle of autonomy of autonomy applies to the relationship between husband and wife in foreign affairs and the divorce relation of foreign-related agreements, and whether the principle of autonomy can be applied to the form elements of foreign marriage. There is no clear legal provision for the relationship between man and wife involved in foreign affairs and the relation of foreign-related foster care, and there is no definite restriction on the application of the principle of autonomy of autonomy to the relationship between the above-mentioned foreign marriage and family. The fourth part discusses the legislative perfection of the application of the principle of autonomy of autonomy to the relationship between foreign marriage and family. In the relevant international private law legislation and practice, the author believes that when China revises the relevant international private law legislation in the future, the principle of autonomy should be extended to the following fields: the form elements of marriage involving foreign affairs, the relationship between husband and wife involved in foreign affairs, the relation of foreign-related foster care, the relation of foreign divorce and so on, and the principle of autonomy should be applied to the above principles. We should make clear and necessary restrictions in the field so as to provide a more scientific legal basis for properly handling disputes over marriage and family relations in foreign countries.
【学位授予单位】：华中师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D997
本文编号：2144417
[Abstract]:The principle of autonomy was first proposed in the academic world, but it was an indisputable fact that the principle was brought out by the French scholar Du Molan in sixteenth Century and caused a fierce debate. The principle was originally applied to foreign contractual relations, that is, the parties involved in foreign contractual relations can jointly cooperate. Because the principle conforms to the needs of the free trade of capitalism and the rise of the modern freedom of contract and the theory of human rights, the scope of the principle of autonomy of autonomy is far beyond the field of foreign contractual relations, and is constantly moving to the field of foreign torts, such as the foreign-related field of trust, and the field of trust relations, The field of foreign marriage and family relations, and even the relation of real right of foreign movable property has been expanded rapidly. China's law applicable to the law of civil relations concerning foreign affairs has carefully examined the objective reality of the application of this principle. In this law, it not only stipulates the principle of autonomy as the applicable clause of general law, but also stipulates that the principle is applicable. In the legal application of the foreign-related civil relations, 14 kinds of foreign-related civil relations can be applied to the principle of autonomy of the meaning. In terms of marriage and family relations involved in foreign affairs, the law clearly stipulates the divorce in the foreign-related agreement, the property relationship of the husband and wife involved in foreign affairs may apply the principle of autonomy of autonomy, and the form elements of the foreign marriage, the relationship of foreign support and the husband and wife involved in foreign affairs. On the basis of the new international private law legislation and practice, many countries apply the principle of autonomy to the above-mentioned foreign marriage and family relations. Based on this, I choose the topic of "the application of the principle of autonomy in the relationship of marriage and family in foreign affairs", first of all, This paper expounds the theoretical basis of the principle of autonomy for the application of the principle of autonomy to the relationship between foreign marriage and family, then explains the scope of the application of the principle of autonomy to the relationship between foreign marriage and family, and then focuses on the legislative characteristics and shortcomings of our country on the application of the principle of autonomy to the relationship between foreign marriage and family, and how to perfect our country's meaning. The principle of autonomy applies to the legislation and practice of the relationship between foreign marriage and family and puts forward some specific suggestions. It is expected to be beneficial to the improvement of relevant international private law legislation in China, so as to timely and properly deal with disputes concerning foreign marriage and family relations. The full text includes the following parts except introduction and conclusion: the first part, interpretation The theoretical basis for the application of the principle of autonomy to the relationship between marriage and family involved in foreign affairs. The theoretical basis for introducing the principle of autonomy in the legal application of marriage and family relations involved in foreign affairs mainly includes the theory of freedom of marriage contract. The theory holds that the relationship of marriage in foreign affairs is still in essence the contractual relationship of foreign affairs, since the parties to the marriage may be based on the basis of the theory. The meaning of the two parties means to conclude the contract of marriage and family relations, and it can also be used to choose the legal application of the relationship of foreign marriage and family according to the mutual agreement of the parties, and the theory of autonomy of private rights. The theory holds that the relationship between marriage and family is a typical civil and commercial relationship, and the civil and commercial standards are adjusted according to the classification standard of law to the law in the western jurisprudence. The law of the relationship should belong to the private law, and the private law field usually should not intervene in it, that is, private autonomy, so the relationship between the marriage and family should be applicable to the principle of party autonomy. Modern human rights theory holds that it should be people-oriented, respect human freedom and equal rights, and respect human autonomy, so the natural person is a natural person. The principle of autonomy of meaning should be applied to the relationship of marriage and family for the main body. The second part is to elaborate the scope of the principle of autonomy for the application of the principle of autonomy to the relationship between marriage and family involved in foreign affairs. Although the legislation and practice of relevant international private law in various countries are different, the principle of autonomy mainly applies to the following aspects of the relationship of foreign marriage and family: the form of marriage involving foreign affairs. The third part of the relationship between husband and wife involved in foreign affairs, including the relationship between husband and wife and husband and wife, property relations of foreign husband and wife, the relationship of foreign divorce and the relationship between foreign support and so on. The paper discusses the legislative characteristics and main shortcomings of the principle of meaning autonomy applicable to the relationship of foreign marriage and family. The legislation of external marriage and family relations is mainly seen in the general principles of the civil law, the law applicable to the civil relations of foreign affairs, and other civil legislation. These laws only stipulate that the principle of autonomy of autonomy applies to the relationship between husband and wife in foreign affairs and the divorce relation of foreign-related agreements, and whether the principle of autonomy can be applied to the form elements of foreign marriage. There is no clear legal provision for the relationship between man and wife involved in foreign affairs and the relation of foreign-related foster care, and there is no definite restriction on the application of the principle of autonomy of autonomy to the relationship between the above-mentioned foreign marriage and family. The fourth part discusses the legislative perfection of the application of the principle of autonomy of autonomy to the relationship between foreign marriage and family. In the relevant international private law legislation and practice, the author believes that when China revises the relevant international private law legislation in the future, the principle of autonomy should be extended to the following fields: the form elements of marriage involving foreign affairs, the relationship between husband and wife involved in foreign affairs, the relation of foreign-related foster care, the relation of foreign divorce and so on, and the principle of autonomy should be applied to the above principles. We should make clear and necessary restrictions in the field so as to provide a more scientific legal basis for properly handling disputes over marriage and family relations in foreign countries.
【学位授予单位】：华中师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D997
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