试论冲突规范的价值取向——行走于“形式正义”与“实质正义”之间

Value Proposition of Conflict Rules: Travelling between the Formal Justice and the Substantive Justice

传统的冲突规范注重连结点的确定性、法律适用的统一性和可预见性,追求"形式正义",但这种只注重"立法管辖权"的传统冲突规范越来越不适应国际民商事交往的需要;现代冲突规范通过运用灵活、开放的连结点等方式追求"实质正义",但在"国际本位"理念的指导下,正义并非仅指当事人的利益得到合法保护,且"冲突正义"和"实质正义"应协调统一。

The traditional conflict rules pay attention to the certainty of the connecting points, unity and predictability of the legal application, and seek the formal justice. But the traditional conflict rules which only pay attention to legislative jurisdiction don＇t adapt to the need of international civil and commercial communication increasingly. The modern conflict rules seek the substantive justice, through the application of flexible and open connecting points. But under the guidance of ＂international standard＂, justice not only refers to the interests of the parties, which is protected legally ,but also the conflict justice and the substantial justice should be harmonious and unified.