论中国对外担保审批规定在英国司法实践中的适用——以Emeraldian案为中心

The Application of Chinese Approval Requirements on External Guarantee in the UK Courts: Focusing on the Case of Emeraldian

作为无须冲突规范指引的直接适用法的表现,中国法院无一例外地适用本国的对外担保审批要求审理对外担保案件,从而必然发生未经审批的对外担保合同无效的后果。而从Emeraldian案可以看出,在《罗马公约》生效的背景下,除非中国对外担保审批规定构成合同准据法,满足《罗马公约》第3条第3款的条件,或借助普通法上的公共政策规则,否则不能获得英国法院的认可;在《罗马条例I》通过之后,英国正式确立了第三国直接适用法制度,这使得中国对外担保审批规定有了新的适用依据。然而,由于中国立法规定未经审批的对外担保合同无效后仍发生特别的民事后果,英国法院能否运用第三国直接适用法制度实现此类规范的适用仍存在未知之数。故两国在未经审批对外担保合同效力的认定上存在真实的法律冲突,有必要探求造成此种冲突的原因,从而为中国寻求应对方法。

The approval requirements on external guarantee,as a rule of immediate application without the reference of conflict rules,are applied by Chinese courts to all the foreign-related cases over guarantee. Without approval,the relevant contracts of foreign-related guarantee are invalid in China. In the case of Emeraldian,where the Rome Convention was applied,the UK courts did not recognize Chinese approval requirements on external guarantee,unless the following conditions were satisfied: Where the approval requirements on external guarantee were the law applicable to the contract,the conditions provided in Article 3( 3) of Rome Regulations I were satisfied,or the approval requirements constituted public policy in accordance with rules of common law. With the promulgation of Rome Regulations I,the application of the third-country rules of immediate application has been accepted in the UK. Chinese approval requirements on external guarantee may constitute the third-country rules of immediate application. However,the external guarantee contracts that are invalid due to disapproval still have certain civil effects according to Chinese laws. It is uncertain for the UK courts,by use of the third-country immediate application,to apply Chinese approval requirements on external guarantee. Therefore,true conflicts exist between the UK and China in determining the validity of disapproved external guarantee contracts. It is necessary to explore the reasons for such conflicts,and to find a way for China to solve this issue.