论自由裁量主义在冲突法中的渗透

A Study on Discretionary Power in Conflict of Laws

传统冲突法多边主义方法的实质,是通过不同的连结点将各类国际民商事法律关系场所化或分配到特定的国家或地区中,最后适用该特定国家或地区的法律规定。这种方法忽视了法官自由裁量权的作用,遭到以美国为首的冲突法学者的尖锐批判。受此影响,各国在冲突法的立法中都赋予了法官一定限度的自由裁量权。自由裁量主义在冲突法中的渗透,成为冲突法立法发展的必然趋势。其渗透的主要方式是采用最密切联系原则,渗透的主要领域是合同和侵权。我们必须正确面对自由裁量主义在冲突法中渗透的现实,在冲突法的立法中适当赋予法官自由裁量权,以应对复杂多变的国际民商事关系。

The essence of multilateral approach adopted by traditional conflict of laws is to localize various international civil and commercial relationships through different links or allocate them to a certain state or region, and ultimately apply the law of that state or region. Such approach overlooks the role of judicial discretionary power, and therefore, is sharply criticized by scholars of conflict of laws, particularly in the USA. Influenced by the ideas embodied in the revolution of conflict of laws, the discretionary power of judges has been established in legislation of various states. The gradual penetration of discretionary power has become an inevitable trend in the law - making in conflict of laws, with the principle of proximate relationship as the main pattern and the contract and torts as the main subjects. At present, the legislation of conflict of laws in China is at its critical moment. We, therefore, need to correctly face the reality of this trend, to confer discretionary power on judges in the legislative efforts in the area of conflict of laws, so as to be able to cope with the complex and changing international civil and commercial relationships.