论国际物权关系的适当法——物之所在地法原则之理析

The Proper Law in International Relation of Right in Rem:Theoretical Interpretation of Real Statute Doctrine

自19世纪末20世纪初以来,物权关系统一适用物之所在地法逐渐成为世界各国在立法和司法实践中所采取的共同立场,物之所在地法原则成为解决包括动产物权和不动产物权在内的物权法律冲突的基本原则。但是,对于物之所在地法原则适用的理论根据学者们却有着不同的解释。其实,物之所在地法原则所以成为解决物权关系法律适用问题的基本原则,既是由物权关系的性质和特点决定的,也是由物权法的性质和特点决定的,质言之,物之所在地法乃国际物权关系的适当法。

The doctrine of implementing the domestic law to deal with the relation of right in rein has gradually become the common belief shared by almost all countries around the world in their legislative and judicial practices since the late 19th century and the early 20th century. The real statute doctrine has been settled as the fundamental doctrine in order to solve conflicts of real laws that concern about movable right and immovable right. However, the implementations of real statute doctrine vary according to different interpretations of different scholars. In fact, the reasons that real statute doctrine has become a basic doctrine on issue of right in rem should be explained not only by qualities and characteristics of relation of right in rein, but also by qualities and characteristics of real law. In a word, the real statute is the appropilate law applied in international relation of right in rem.