国际私法上自然人住所制度及其借鉴意义

On the Rules of the Domicile of Natural Person in the Two Systems of Law of Western Countries and Their Enlightenment on the Corresponding Rules in China

住所是国际私法中确定涉外民商事案件的管辖权和法律适用的一个重要的连接因素。英美法系和大陆法系在住所制度上的规定各不相同,但已逐渐呈融合之势,这表现在住所的定义、内容和住所适用的领域方面。和大陆法系及英美法系的国家相比较,我国的住所制度在很多方面都存在缺陷,这主要集中于这三个方面:缺少住所的定义、未规定外国人、多国籍人和无国籍人住所的确定方法和缺少对住所进行识别所应适用的准据法的规定。因此,我国应在将来的民法典立法和国际私法立法中予以弥补和纠正。

The domicile of natural person is an important connection factor in the process of ascertaining the jurisdiction and the application of law in the international civil and commercial cases. Although there are quite different rules in the civil law system and the common law system, they have been inosculating in some degree. The inosculation has been shown in different aspects, such as the definition, contents and the application of it. Compared with the countries that belong to the civil law system or the common law system, there exists some weakness in the system of the domicile of natural person in China, which is embodied in three aspects ： no definition of the domicile of natural person in Chinas law system, no rules on the means to ascertain the domiciles of foreigners, multinational persons and stateless persons. Whats more, in the law system of China, there is also lack of rules on ascertaining the law to govern the characterization of the domicile of natural person. So all these weaknesses should be made up and rectified in the coming process of legislations on the civil code and the International Private Law in China.