《涉外民事关系法律适用法》中的弱者利益保护规则

On the Rules of Protecting the Interests of the Weak in Law of the Application of Law for Foreign-related Civil Relations

《涉外民事关系法律适用法》中的有利于一方规则、单方意思自治规则以及弱方属人法规则彰显了弱者利益保护原则。学者对三类弱者利益保护规则的保护对象、保护手段及保护力度提出了诸多质疑。有的观点颇具合理性,也有的观点可待商榷。弱者利益保护原则无疑应当作为国际私法立法的基本原则,但无须在法条中专门作出明文规定,在具体的法律适用规则设计中充分贯彻该原则,即是对这一原则的最好遵循。

The one party-favored rules, unilateral autonomous rules, and rules of the personal law of the weak in Law of the Application of Law for Foreign-related Civil Relations reveal the principle of protecting the interests of the weak.Scholars have put forward many questions about the scope of protection, the methods of protection and the protection efforts of these three types of rules.Some of their opinions are rational while the others leave some room for discussion.There is no doubt that the principle of the protection of the weak shall be a basic principle for the legislation of private international law, but it is not necessary to put explicit stipulations about this into articles.The best way to follow this principle is to fully embody it in the specific design of application rules for laws.