外国法解释模式研究

Interpretation Patten of Foreign Law

外国法解释不同于外国法查明。借助解释模式这一概念,可将外国法解释的目标、主体、对象和途径等不同要素统合为有机整体,置于国际私法和法律解释理论的双重脉络中予以探究。在现有外国法解释模式中,解释目标一般为确定外国法在其所属国的意义,故裁判者须完全摒弃先见,作为忠实的外部观察者摹写外国法律共同体对外国法的客观理解。此模式在司法实践中的困境揭示出其在相当程度上偏离了法律解释的内在规律。应重新厘定外国法解释目标,结合外国法适用的"情境化"特点,以法律论证理论重构外国法解释模式。

Interpretation of foreign law differs from proof of foreign law. While the primary concern of the latter lies in the procedural matters concerning how to obtain foreign law materials, the former focuses on understanding the meaning of foreign law. The aim, subject, object and approach of interpretation of foreign law can be integrated systematically through the concept of interpretation pattern, which can be explored in the dual context of private international law and the theory of law interpretation. In the present interpretation pattern of foreign law, the aim of interpretation is normally regarded as ascertaining the meaning of foreign law in its origin country. The judge should interpret and apply foreign law in the same way as the foreign judges do. In this way, the judge is expected to act as a faithful outer observer in the adjudicating process, and this pattern of interpretation is branded with the mark of complete division between the subject and object of interpretation. However, this pattern encounters dilemma in the judicial practice. The problem can be traced back to its deviation from the inherent character of law interpretation in some sense. Reflection needs to he made with regard to the aim of interpretation that plays a key role in the interpretation pattern. In the context of resolving the cross--board dispute, the interpretation of foreign law should serve for the just and fair application of foreign law so as to maintain the legal interests and legitimate expectation of the parties effectively. Accordingly, the theory of argumentation of law needs to be introduced to reconstruct the pattern of interpretation, thus the parties and the judge will equally take part in the interpretation process and jointly construct the meaning of foreign law in accordance with the law argumentation rules.