动产物权冲突规范中的意思自治原则

Application of the Theory of Party Autonomy to the Conflict Rules of Movable Property Rights

意思自治原则在国际私法中主要被用于确定特定当事人之间权利义务关系的准据法。通过对几个国家动产物权冲突规范中意思自治原则的分析,本文认为,意思自治原则被引入动产物权冲突规范时,并未突破这一限制。因此,意思自治原则如何适用于动产物权冲突规范这一问题其实就可以被转化为,动产物权变动交易中,原因行为和结果行为应当如何区分的问题。通过区分原则可以将动产物权变动中的特定当事人之间的行为(债权行为)与对第三人有影响的行为(物权行为)加以区别。在此基础上对动产物权变动中的债权行为可适用当事人意思自治原则,而对于动产物权变动中的物权行为则应适用物之所在地法。我国已在现行动产物权冲突规范中引入了当事人意思自治原则,但却未对意思自治的适用范围加以限制,加之我国涉外民商事司法实践中对物权变动的原因行为和结果行为不加区分,因此,在司法实践尚未做好准备的情况下,立法上的激进可能会给实践带来一定困难。

The theory of party autonomy is usually used in private international law to decide the applicable laws that govern the rights and obligations among determined parties. Comparing the application of the theory of party autonomy to the conflict rules of movable property rights in several countries,this article concludes that the restriction mentioned above has not been broken when the theory of party autonomy is introduced to conflict rules of movable property rights. Therefore,the question that how to apply the theory of party autonomy to the conflict rules of movable property rights can be transformed to how to separate the act of cause from the act of result. Theory of separation can be applied to separate an activity between determined parties( act of creditor's rights) and the activity that will effect a third party( act of property rights) during the process of movable property rights changing. On this basis,the theory of party autonomy can be applied to the part of act of creditor's rights; however,as to the part of act of property rights,lex situs shall apply. In Chinese legislation,the theory of autonomy of will has already been invited into the conflict rules of the movable property rights without any restriction; besides,there is no clear separation between the act of cause and the act of consequence in foreign civil judicial practice. Therefore,before the judicial practice has well prepared,such a radical legislation may perhaps bring difficulties to judicial practice.