我国尚未缔结的实体私法条约适用问题研究

On the Application of Substantive Treaty of Private Law which Has Not Been Concluded in China

2013年实施的我国最高人民法院的司法解释明确规定,我国法院对当事人之间的权利义务可以依据尚未对我国生效的国际条约予以确定,从而拓宽了我国涉外民商事案件适用法律的范围。然而,该司法解释对我国尚未缔结的条约在法律适用中具有的特殊地位、选择适用我国尚未缔结条约的方式、适用我国尚未缔结的条约是否限于"援引"与"合同领域"和他国之间的双边或非开放性条约可否适用等问题缺乏明确规定,我国的理论与实务部门对这些问题的研究尚不够深入,深入分析研究上述问题有益于进一步完善我国涉外民事关系法律适用法的理论与实践。

The implemented judicial interpretation of China＇s Supreme Court in 2013 clearly defined that the court in China may determine the rights and obligations between the parties based on the content of interna-tional treaties which has not been in force in China. Therefore it broadens the scope of applicable law of Chi-na＇s foreign-related civil and commercial cases. However, it lacks of clear definitions in such perspectives as special status of the treaty that China has not yet concluded in the application of law, selective ways of the ap-plication of the treaty that China has not yet concluded, whether the application of the treaty China has not yet concluded should be limited to＂invoking＂or＂contract territory＂and whether the bilateral or non-openness treaty could be applied between the other countries or not. Now the research of the departments of theory and practice on these issues is not deep enough. The in-depth research and analysis on these issues are beneficial to further improve the China＇s application of law in the theory and practice of foreign-related civil relations.