涉外民商事案件中的先决问题及域外法的查明——对安联公司海上货物运输合同纠纷一案的评析

Preliminary Issues in Foreign-related Civil and Commercial Cases and the Identification of Extraterritorial Law——Commentary on Allianz Global Corporate & Specialty SE v. NHE Shipping Incorporated for Dispute on Carriage of Goods by Sea

在涉外民商事案件审判中,先决问题及其后的查明域外法有助于实现判决的国际一致性,维护当事人权益。文章结合一起近期适用德国法的案件,详细阐释了先决问题及其重要意义,论述了先决问题有助于理解案情、充分回应诉辩主张、体现司法政策要求、发挥裁判示范效应。但是,在查明域外法方面,现行规定原则性较强,欠缺细化标准,域外法查明途径仍有待拓宽、域外法查明范围未能明确。现行法律规定的查明途径,并非穷尽式列举,人民法院法官完全可以灵活运用"司法认知"这一途径查明域外法,在域外法查明范围上,应尽量拓宽域外法查明的渠道,尽可能的重视其他法源及辅助资料,促使域外法的含义进一步得到明确。

In the foreign-related civil and commercial judicial process, preliminary questions and their subse- quent identification of extraterritorial laws are conducive to achieving international consistency of judgments and safeguarding the rights and interests of the parties concerned. Combined with a recent case applying Ger- man law, the authors elaborate on the preliminary question and its important significance, especially dis- cussing that the preliminary question is conducive to understanding the case, fully responding to the claim, re- flecting the requirements of judicial policy, and giving play to the demonstration effect of judgment. However, in terms of the investigation of extraterritorial law, the current provisions have strong principles and lack of de- tailed standards. The way to find out the extraterritorial law remains to be widened and the scope of finding out the extraterritorial law is not clear. The authors point out that the current legal methods for the investigation are not exhaustive enumeration, and the People＇s Court judges can use the ＂judicial cognition＂ method to find out the extraterritorial law flexibly. In terms of the scope of extraterritorial jurisprudence, we should try to widen the channels of extraterritorial jurisprudence ascertaining, pay as much attention to other legal sources and auxiliary materials as possible, so as to further clarify the meaning of extraterritorial jurisprudence.