涉台民商事案件法律适用司法实践析评

On the Judicial Practice in the Application of Law to Taiwan-Related Civil and Commercial Cases

中国大陆的法院解决涉台民商事案件的法律适用问题不是被动而是能动的。在《关于审理涉台民商事案件法律适用问题的规定》出台前,法院以务实的态度,通过不同途径决定涉台案件的法律适用。该司法解释令法院参照国际私法规范处理涉台民商事纠纷的做法有法可依,法院积极适用《涉外民事关系法律适用法》等规定,且取得良好效果。然而,涉台司法实践也要正确理解与适用国际私法有关条款,尤其需澄清适用意思自治原则和最密切联系原则时所关涉或存在的问题。

The application of law to the settlement of Taiwan-related civil and commercial cases by mainland courts is not passive, but be active. Before the promulgation of the Provisions of the Supreme People＇s Court on the Application of Law in the Trial of Taiwan-Related Civil and Commercial Cases, the courts took pragmatic approaches and determined the applicable law through different ways. The judicial interpretation makes it possible for the practice of courts to have their legal bases by refer- ring to the rules of private international law in handling the Taiwan-related commercial disputes, and at the same time, the courts＇ active application of the Law of the People＇s Republic of China on Application of Laws to Foreign-Related Civil Relation has gained remarkable results. Nevertheless, we should understand well and apply the relevant provisions of private international law in terms of Taiwan-related judicial practice, and especially need to clarify some related or existing problems arising in the application of the party autonomy principle and its closest relationship principle. Taiwan-related civil and commercial cases, application of law, judicial practice