美国产品责任法律适用新趋势研究——兼论我国法律适用法45条之修订

The New Tendency of Law Application for the Products Liability Tort Law in Recent America- With Some Comment on the Revision of the 45th Clause of the Applicable Law of Our Country

美国晚近的产品责任侵权法律适用具有如下趋势:在司法实务界,侵权行为的准据法确定方法仍然因州而异,美国至今仍未形成全国性的统一规则,但第二次冲突法重述正获得越来越多的州的支持。另一方面,由于有关利益解释标准不一及难以应对真实的冲突及利益欠缺等问题,第二次冲突法重述愈发遭受学界猛烈的批判。近来,原先的"保护被害人利益"及"法院地法主义"等倾向逐渐淡化,代之以"重视连接点的积聚""防止选择法院"等倾向开始散见于各州的判例中。

The newly -passed Law Application for the Products Liability tort law in America has the following tendencies： the method to determine the applicable law for torts still varies from state to state in the judicial practice; a unified rule has not formed nationwide, but the Second Restatement of Conflict of Laws is gaining more and more support from the states. On the oth- er hand, due to different standards and difficulty to deal with the situations such as ＂real conflicts＂ and ＂lack of benefits＂, the Second Restatement of Conflict of Laws has been suffering fierce criticism from academics. In addition, the original tendencies such as ＂pro - victims＂ and ＂lexi fori - doctrine＂ is fading gradually, and they are being replaced by such trends as ＂to empha- size the connection point accumulation＂, ＂to prevent the choice of court＂, which begin to be seen in the cases of several states.