论国际私法上的先决问题

Preliminary Question in Private International Law

先决问题是国际私法中的一个一般制度问题。提出先决问题的构成要件应该有两个。即先决问题是相对独立的问题,法院可以单独就先决问题作出判决,先决问题对于主要问题的解决具有制约作用。先决问题的法律适用规则应该灵活性与合理性并重。在冲突规范中应该规定多个连结因素,力求避免适用单一的连结因素。

Preliminary question is a common system problem in private international law. It is necessary to discuss on constitutive elements and the rules of application of preliminary question in our private international law. Preliminary question has two constitutive elements. First, preliminary question is relatively independent , so the court can make a sentence independently for this kind of question. Second, preliminary question has restrictive function to the settlement of main question. The rules of application of law should stress on both flexibility and rationality. The conflict rule of preliminary question should have multi-points of contact, but not only one. The legislation about preliminary question in our country needs to be further revised.