转介条款对强制规范的解释与直接适用法的判断

On the Interpretation of Mandatory Rules by Switch-over Clause and Judgment of Rules of Immediate Application

直接适用法构成公法强制规范在冲突法层面投射的反映。在寻找直接适用法的判断标准时,有必要从强制规范对合同效力的影响当中获得启示,即特别发挥解决公私法冲突的转介条款对强制规范的解释功能。就转介条款对强制规范的解释方法而言,区别于效力位阶方法的僵硬和规范分类方法的以问答问,通过赋予法官以自由裁量权,利益平衡方法能使法官妥善运用比例原则权衡因适用直接适用法带来的公共利益和私人利益之间的冲突。就转介条款对强制规范的解释范围而言,理论上完全法不必借助转介条款,但由于我国立法的预先安排往往是过度的,与转介条款的一般解释相冲突,故应谨慎对待;不完全法则应由法院地国而非外国准据法所属国的转介条款决定强制规范如何对合同发生私法效果。总之,《中华人民共和国民法典》第153条第1款之类的转介条款自身不构成直接适用法,而是被纳入到《中华人民共和国涉外民事关系法律适用法》第4条这一直接适用法制度当中,使之具有一并解决地域法冲突和公私法冲突的复合选法功能。

Rules of immediate application are the reflection of public manda-tory rules in the level of conflict of laws.So when exploring the judging stan-dards of rules of immediate application of China,it is necessary to draw a use-ful lesson from the influence of mandatory rules on validity of contracts.The in-terpretation of mandatory rules by switch-over clauses in resolving conflicts be-tween public and private law have to play a special role.On the interpretation methods of mandatory rules by switch-over clauses,different from the rigid stan-dard of legal hierarchy and standard of classification of norms which is answered by introducing another question,by entrusting judges with discretionary power,standard of balance of interest could use the proportionality test properly to well weigh the conflicts between public and private interest caused by rules of immedi-ate application.On the scope of interpretation of mandatory rules by switch-over clauses,although the complete law doesn't need the aid of switch-over clauses any more in theory,it should be carefully handled.Because the arrangement in advance of the PRC law is excessive and conflicts with the general interpretation of switch-over clauses.The incomplete law should be decided by the switch-over clauses of forum on how to have a private law impact on contracts.On the whole,Article 153 Paragraph 1 of the Civil Code of the PRC itself does not con-stitute a rule of immediate application.Instead,it is included in the system of rules of immediate application which defined in the Act of the PRC on Applica-tion of Law to Foreign-Related Civil Relations,so that this system could have comprehensive functions on choice of law in both conflicts among territorial laws and conflicts between public and private law.