“定性”的条文设计与论证

The Design and Reasoning on the Article of Qualification

对涉外民商事关系的准确定性是正确适用冲突规范的前提 ,但我国现行立法并未就定性问题作出明确规定。文章采条文设计的形式 ,从立法、理论和实践的角度对定性及其依据进行了充分、深入的阐述 ,并认为 ,涉外民商事关系的定性依法院地法 ,法院地法没有相应的法律制度或法律概念的 ,定性依与该涉外民商事关系有最密切联系的外国法。

s: Qualification of foreign-element civil and commercial relations is the prerequisite of applying conflict rules correctly, but there is no relative legislation on the issue in China. In the form of article designing and reasoning, this paper discusses the issue of qualification from the aspect of legislation, theory and practice sufficiently and deeply. It is concluded that the qualification of foreign-element civil and commercial relations shall be governed by the law of forum. In case there is no relative legal system or concept, the issue shall be governed by the law of the foreign country which has the most significant relationship with the issue.