美国涉外侵权冲突法的最新发展——俄勒冈州《侵权与其他非合同请求的法律选择法》评介

俄勒冈《侵权与其他非合同请求的法律选择法》是美国第一部由普通法传统的州颁布的成文侵权冲突法,代表了美国侵权冲突法的最新成就。这部法律在实证分析的基础上准确定位自身特点,将冲突法的立法和研究工作引向纵深发展;在比较法基础上构建最适合自己的规则体系,体现出平衡、独立和理性的特点。与此同时,该法放弃灵活方法,采取规则形式,基于预防损害和填补损害的实体功能在侵权冲突法上的不同要求,确立了行为规制规则和损失分摊规则的分割原则,并通过侵权行为地法原则、意思自治原则、共同住所地法原则以及"最适当"原则的设置,将实质正义因素融入对冲突正义的追求中,力求实现法的确定性与灵活性的最佳平衡。

The Act on Choice of Law for Torts and Other Non-Contractual Claims, the first attempt to codify tort conflicts by the State of Oregon with common law tradition, represents the latest achievement in tort conflicts in America. On the basis of empirical analysis, the Act has offered a clear delineation of its own characteristics, thus enabling the legislation and research of conflict of laws to gain momentum. On the basis of comparative law, the Act has constructed its own body of rules highlighting the values of balance, independence and rationality. Moreover, by abandoning open-ended approach and instead, taking the form of choice-of-law rules, the Act has established the principle of division between the conduct-regulating rule and loss-distributing rule, which is supported by the substantive law of torts and its two fundamental objectives --deterrence and compensation. Through the establishment of the rules of lex loci delicti, party autono- my, the law of the common domicile, and the ＂most appropriate＂ principle, the Act has also incorporated the substantive justice into its search for conflicts justice, and tried to restore a proper equilibrium between the certainty and flexibility of the law.