“长臂管辖权”的法理分析与对策研究

Jurisprudential Analysis and Countermeasure Research on ’Long-arm Jurisdiction’

"长臂管辖权"是域外管辖权的美国表达,一般包括立法管辖权、司法管辖权和执法管辖权,这三者的行使基础既有联系又有区别。"长臂管辖权"同时面向国际社会和国内社会,常常涉及国家之间的主权平等关系、法院与私人当事人之间的诉讼关系和私人之间的平等关系。美国法院先后从权力论、联系论或者方便、公平和正义论中寻找其法理基础。在实践中,起源于解决州际问题的"长臂管辖权"同时在民商事和刑事领域不断向域外立法管辖权与执法管辖权扩张,其适用深受美国政治和外交政策的影响,经常违反美国承担的国际义务、侵犯其他国家的主权,毫不顾及国际礼让和国际法上的"合理性"要求。随着中美关系的变化,加上"长臂管辖权"基础本身的模糊性,美国对涉中国事项滥用"长臂管辖权"的倾向愈发明显。我国应根据国际法规则,从借鉴与应对两个视角以及立法、司法、执法三个层面构建我国法的域外适用法律体系。

The long-arm jurisdiction is an American style of extraterritorial jurisdiction, which is generally divided into legislative jurisdiction, judicial jurisdiction and jurisdiction to enforce. The bases of these jurisdictions are not only related but also different. The long-arm jurisdiction faces both the international community and domestic society, and often involves sovereign equality between countries, litigation relationships between courts and private parties, and equality between private parties. American courts in sequence seek jurisprudential basis from power theory, connection theory and the theory of convenience, fairness and justice. In practice, however, the long-arm jurisdiction, which originates from solving interstate jurisdiction problems, has been expanding to extraterritorial legislative jurisdiction and jurisdiction to enforce in civil, commercial and criminal matters. Its application is deeply influenced by American politics and foreign policies, often violates the international obligations of the United States, infringes upon other countries sovereignty, recklessly ignores the international comity and the requirement of ’reasonableness’ under international law. With the change of Sino-US relations and the ambiguity of the long-arm jurisdiction basis itself, the tendency of the United States to abuse the long-arm jurisdiction to China-related matters becomes more and more obvious. In order to effectively deal with the abuse of the long-arm jurisdictions by the United States, China needs to establish an effective system of extraterritorial application of Chinese law from two perspectives of reference and response, and three levels of legislation, judicature and law-enforcement, in accordance with the rules of international law.