论涉外民商事审判中的选法规则

Rules on Choice of Law in Foreign-related Civil and Commercial Trials

在涉外民商事纠纷中,应赋予意思自治原则为选法之首要规则,尊重当事人之间选择的法律,法官不能运用最密切联系原则或例外条款排除其适用,除非违反法院地国的强制性规范或严重影响法院地国公共利益。在国际私法总则中,应引入例外条款来替代最密切联系原则的地位,同时限定最密切联系原则的适用范围。保护弱方权益原则应渗透到国际私法的各个领域,遵循有利原则的精神,促成民事行为的有效,实现当事人的意愿,平等保护各方当事人。对于法官的自由裁量权的限制抑或扩张应持谨慎态度,在通常情形下,法官必须通过冲突规范的指引适用准据法,只有当适用准据法后会严重影响个案公正,法官才可以援引例外条款行使自由裁量权,并据此否定本应适用的准据法。

In international private disputes,the prime principle for choice of law should be entitled to the autonomy of will. The law once chosen by parties concerned should be respected and the judge should not exclude such law from application by resorting to the proximate connection principle or the escape clause,unless the choice of law has violated the mandatory norms or public interest of the nation where the court is located. In accordance with the general rules of international private law,the status of the proximate connection principle should be replaced by the escape clause and the application scope of the former principle should be limited therefore. The principle to protect the interest of the vulnerable should be delivered to all areas of international private law and the beneficial principle should be conformed to so as to promote the civil conduct to be effective,to realize the will of the parties concerned and to protect them equally. Besides,it should be prudent to limit or expand the judge＇s discretion power,since usually the judge have to apply laws guided by conflict rules,unless in case such law would severely jeopardize justice and thus the judge can resort to the escape clause by discretion and to negate the application of such law.