涉外民商事审判中的自由裁量权探析——以金融危机应对和指导性案例为中心

An Analysis on Discretionary Power in the Trial of Foreign Civil and Commercial Disputes——With Financial Crisis Treatment and Instructive Case as Center

法官自由裁量权在两大法系中都是存在的,其在涉外民商事领域的功效尤为凸显。我国现行涉外民商事立法主动或被动地赋予了法官在涉外民商事审判中极大的自由裁量权。《中华人民共和国涉外民事关系法律适用法》的通过使得涉外民商事法律适用法迈进了一步,但是立法的局限性进步仅仅是在某种程度上使得自由裁量权由过去的空洞无序迈向有序。正值我国指导性案例成行之初,借助该契机,在建立我国涉外民商事审判领域指导性案例体系的同时,实现法官在该领域自由裁量权的突破,弥补和修正立法的不足,也为金融危机等情势提供应对路径。

The discretionary power of judge exists in two legal systems, especially in foreign civil and commer- cial disputes. China＇ s current legislation of foreign civil and commercial dispute actively or passively offers the judge extreme discretionary power in the trial of foreign civil and commercial dispute. Release of ＂Application Law of Foreign Civil Relation of PRC＂ makes it take a step forward. However, the limited advance of legislation only makes discretionary power advance toward orderliness from the past blank and disorder to a certain ex- tent. At the time of implementation of instructive eases, we should take this opportunity, embody the break- through of discretionary power of judge in this field, make up and amend the defect of legislation while establis- hing instructive case system in the field of foreign civil and commercial dispute, and also provide solutions to situations of financial crisis.