论国际惯例在我国涉外民事关系中的适用——兼评《涉外民事关系法律适用法》

On Applications of International Usage in Foreign-related Civil Relations in China——Reviewing the Defects of Law of the application of law for Foreign-related civil relations of the RPC

在国际民商事交往领域,国际惯例主要就是国际商事惯例。我国《民法通则》第142条是一条具有一般规定性质的冲突规范,该条以及其他法律的相关规定所指的国际惯例只是在一定条件下法院处理涉外民事关系的准据法,据此不能得出国际惯例是我国国际私法渊源的结论。本文认为,《涉外民事关系法律适用法》颁布之前,我国立法和司法实践存在两大问题:一是国际惯例所指为何不明确;二是借公共秩序排除国际惯例的适用。《涉外民事关系法律适用法》没有对国际惯例的适用做出规定,对此,应该尽快加以修正。

In the field of international civil and commercial transaction,international usage is mainly international commercial usage.Article 142 of General principles of civil law of the RPC is just one of the conflict rules which can be viewed as a general provision,the so-called ＂international usage＂ referred in this article and other relevant provisions of other laws is just a kind of applicable law,which is quoted by courts to deal with the foreign-related civil relations in certain conditions.Therefore,on these grounds,we should not draw a hasty conclusion that international usage is the source of the China＇s private international law.Before the Law of the application of law for Foreign-related civil relations of the RPC was enacted,there were two main problems in China＇s legislative and judicial practices：one is that the conception of international usage was not explicitly explained,the other is that the public order was exploited to exclude the application of international usage.However,the Law of the application of law for Foreign-related civil relations of the RPC have not stipulated any provision concerning the application of international usage,and what＇s more,the first problem mentioned above still remains unsolved.So in view of above-mentioned reasons,we should try our best to amend the law as soon as possible.