论法外选法——瑞士国际私法的实践与启示

The Escape Clause in Private International Law——The Practice in Switzerland Private International Law and Its Revelation for China

双边国际私法中的"法外选法"现象是冲突规则灵活性的体现之一,这种做法被瑞士立法者接受并体现为其国际私法法典中的"例外条款",该国法院已在数例涉外法律冲突案件中突破冲突规则选法并逐渐形成较一致的实践,践行"法外选法"应限制为冲突规则的例外,以免破坏法律选择的确定性之理念。中国未来国际私法宜借鉴瑞士国际私法相关理念,在法典立法中采纳一般例外条款,并且在冲突法立法尽量避免在分则中出现例外条款,而在总则部分规定概况地规定一般例外条款,作为对所有双边法律选择的例外矫正。

The exception clause in bilateral private international law is the embodiment of the flexibility of conflict rules, which was accepted by Switzerland lawmakers and embodied in the ＂escape clause＂ in its private international code. The courts in Switzerland have broke through conflict rules in several cases concerning foreign affairs and gradually formed a consistent practice, and followed the rule of ＂escape clause＂, which is considered to be an exception conflict rules so as to avoid breaking the concept of certainty in law choice. The future private international law of PRC should draw lessons from Switzerland private international law and its related concept, adopt the general exception clause in the private international law legislation, and avoid the exception clause in the specific provisions of the private international law of PRC, and stipulate the general exception clause in the general provisions of the private international law of PRC, as a correction to the exception clauses in all the bilateral choice of law.