程序法视野中冲突规则的适用模式

Application Mode of Conflict Rule from the Perspective of Civil Procedure

程序法视角和程序法原理对于分析冲突规则依职权适用抑或任意性适用的问题虽必不可少,但程序处分主义和辩论主义均不能成为冲突规则任意性适用的基础。在法官依职权适用冲突规则的制度下,必须强化法官对冲突规则以及相关法律适用问题的释明义务,以防发生突袭裁判,并由当事人证明外国法。只有依职权适用而非任意性适用冲突规则,才能最大限度地维护当事人依据国际私法体系所享有的法律适用的权利。

Private international law, an indivisible part of each legal system, should have the same dignity and value as any other legal field. Consequently, conflict rules should be applied by judges ex officio rather than at the mercy of the parties. Neither the dispositive principle nor the adver- sarial principle nor a practical caring for the procedural interests of parties provides a strong argu- ment for the facultative application of conflict rules. From the perspective of procedural law, however, the related rules of civil procedure should be taken into consideration in the analysis of the application mode of conflict rules. When the confliCt rules are applied by judges ex officio, it is the judges~ responsibil^ity to disclose to the parties any information about the related conflict rules and the applicable law referred to. On the other hand, the parties should bear the duty to prove foreign law. The proce- dural interests of both parties will be best protected by this approach. The ex officio application of conflict rules does not mean any mandatory application of foreign law which conflict rules refer to. This mode does not neglect the will of parties on whether to apply foreign law, nor does it disregard the weighing of the costs and gains of applying foreign law by parties. The ex officio application of conflict rules is proximately a ＂procedural process＂. Its crucial function or purpose is that, when conflict rules or the applicable foreign law does not invoked by the parties initiatively, judges will disclose the law application problem to the parties and urge them to think it carefully. Consequently, the parties ~ right to apply foreign law will not be renounced due to their ignorance, incompetence or negligence. This mode will mostly protect the parties~ rights under both international private law and substantive law. To make it clear to accept the ex officio application of conflict rules, which denotes to regard foreign legal systems as equal to ourselves and protect international private law order on conflict law rather than lex fori, will serve as a symbol of the magnanimity which China should show to the outside world as a great power.