破解迷象:国内法域外管辖的基本形态与衍生路径

Penetrate the Intricate Images: the Principles of and Approaches to Extraterritoriality

对域外立法管辖权具体表现形式的不同理解导致国际管辖实践呈现出纷繁的迷象。首先,属地管辖的域外影响与域外管辖高度相似,易使人混淆。其次,属地管辖和属人管辖作为国家管辖权的两种基本形态,各自衍生出基于"属地路径"的域外管辖和基于"属人路径"的域外管辖。这两种路径下的管辖措施或属合理延伸,或属过度扩张,其合法性与合理性不尽相同。在此两种衍生路径之外,还有一种不依据任何特定路径的域外管辖方式,但可能在外观上与"属地路径"或"属人路径"相似,故尤需分辨清楚。属地管辖的域外影响、基于属地路径的域外管辖、基于属人路径的域外管辖以及无特定路径的域外管辖等四种类型管辖现象的存在揭示了管辖原则的灵活性与相互关联。我国域外立法管辖路径的选择不离乎上述四类,可主次地搭配衔接使用,从而建立起调适与创新相协调的管辖权理论和涉外法治体系。

Extraterritoriality has numerous different faces which make scholars lost when they are gazing deeply into it, for there are various explanations of this concept by States. The first difficulty most States contend with is the similarity between the extraterritorial effects of territorial jurisdiction and pure extraterritorial jurisdiction. Territorial regulating measures such as import/export control can produce extraterritorial effects on foreign entities or conducts, and can be as effective as extraterritorial jurisdiction, yet they are not extraterritoriality. The second hardship comes from the extension of territorial jurisdiction and personal jurisdiction. “Extraterritoriality on territorial approaches” is derived from territorial jurisdiction, and “Extraterritoriality on personal approaches” from personal jurisdiction. Some of them are reasonable under the principles of territoriality or personality, while some may have gone too far beyond the present rules. There is also a sort of extraterritorial jurisdiction marked as territorial jurisdiction or personal jurisdiction, but it’s actually neither territorial nor personal. These four ways of excising jurisdiction mentioned above reveal that the principles of jurisdiction in customary international law are available to change their appearances within reasonable scopes and are interrelated with each other. When making extraterritorial regulations and foreign-related laws, China can use these four types of jurisdiction orderly to achieve a better governance.