摘要
认为国际私法的调整对象是国际或涉外民商事法律关系是国际私法学中的最大误解。法律选择规则的内容是指明涉外民商事法律关系应适用的实体法,并不确定当事人权利义务,即法律选择规则不具有调整涉外民商事法律关系的内容和功能,故不能以此为调整对象。法律选择规则的本质是规定法官选择法律的标准、方法和条件,属于程序性规则,也属于公法范畴的规则。国际私法虽不以涉外民商事法律关系为调整对象,但法律选择规则对其调整有着重要影响,近年来法律选择规则更是通过预设实体民商法适用结果来力争获得最好的调整结果。现代国际私法规则由国内规则和国际规则两部分组成,故国际私法既具有国内法性质,也具有国际法性质。
It is the biggest misunderstanding in private international law to think that the applicable objects of private international law are international or foreign-related civil and commercial relation. The rule of choice of law aims to specify the substantive law applicable to foreign-related civil and commercial relations, but does not specify the rights and obligations of parties involved in civil and commercial relations. That is, the rule of choice of law does not have the content and function of adjusting foreign-related civil and commercial relations, so the objects it adjusts cannot be foreign-related civil and commercial relations. The statement in the general theory that private international law adjusts foreign-related civil and commercial relations by means of indirect adjustment is also incorrect. If private international law directly adjusts the choice of law and indirectly adjusts foreign-related civil and commercial relations, it means that there are two objects of adjustment in private international law. The former is a substantive relationship and the latter is a procedural matter, and the content and nature of the two are different. The implication that one law adjusts two objects with completely different characters at the same time can only show the fallacy of this statement. It is also a misunderstanding to think that private international law lacks the prediction of the result of law application. Since the rule of choice of law does not determine rights and obligations, such rule can only assume the function of predicting the result of choice of law, not the result of application of law. The essence of the rule of choice of law is to stipulate the criteria, methods and conditions for the judge to choose the law. It is a procedural rule as well as a rule in the category of public law, which is enough to show that “private international law” is a misnomer. Even if a civil and commercial relationship is foreign-related, it still belongs to the scope of the civil and commercial relationship and can only be adjusted by civil and commercial substantive law. Although private international law does not take foreign-related civil and commercial relations as its objects of adjustment, the rule of choice of law has an important impact on the adjustment of foreign-related civil and commercial relations. The applicable law of foreign-related civil and commercial relations must be invoked through the rule of choice of law. Therefore, the rule of choice of law is a rule that specifically serves the adjustment of foreign-related civil and commercial relations. It expands the scope of choice for the applicable law of foreign-related civil and commercial relations through the equal choice between domestic and foreign laws regulated by bilateral rule of choice of law. The recent rule of choice of law even presupposes the results of the application of substantive civil and commercial law to strive to achieve the best effect when adjusting foreign-related civil and commercial relations. Modern private international law rules are composed of two parts, domestic rules and international rules, so private international law has the nature of both domestic law and international law.
出处
《环球法律评论》
CSSCI
北大核心
2022年第5期163-177,共15页
Global Law Review
