论未对中国生效的国际私法条约在国内法院适用问题

Analysis on the Application by Chinese Courts of Private International Law Treaties to which China is not a Contracting State

对于中国尚未加入的国际私法条约,是否可以在国内法院处理国际民商事纠纷中予以适用,是涉外民商事审判中面临的一个理论与实践问题。由于这类条约中不少具有统一实体法性质,由当事人之间约定选择适用的现象已在涉外民商事交往中不断出现。这一法律问题的讨论将涉及:对此类条约应否予以适用、适用的法理依据、适用的现状与特征、适用的条件与限制等方面。应当对此进行具体分析,以得出结论性意见。

Whether private international law treaties to which China is not a contracting state can be applied by Chinese courts in dealing with international civil and commercial cases is a theoretical and practical problem existing in judicial trials in China As there exist many substantive-norms in the aforesaid treaties,andparties are likely to choose such treaties as their governing laws in their business transactions.The discussion of the legal issue refers to the possibility of such application and its legal basis, reality,feature,conditions and restrictionsetc..The concrete analyses should be made so as to draw a conclusion.