论我国涉外夫妻财产关系的法律适用

Choice of Law on Matrimonial Property Regime in China

我国《涉外民事关系法律适用法》规定涉外夫妻财产关系,优先适用夫妻协议选择的夫或妻的经常居所地法、本国法,或者主要财产所在地法;夫妻没有选择的,适用夫妻共同经常居所地法、共同本国法(第24条);夫妻没有共同经常居所和国籍的,适用与夫妻财产关系有最密切联系的国家的法律(第2条),且不承认反致(第9条),冲突规范的总体设计符合国际立法潮流和趋势。但是,意思自治原则的具体运用过于灵活,无视善意第三人的权利;属人法连结点的选择和安排,既不便于解决国籍积极冲突和区际私法冲突,又不利于兼顾最密切联系场所化的确定性和法律适用的可预见性。

According to China's Mainland’s Law of the Application of Law for Foreign-Related Civil Relations,matrimonial property regime shall be governed by the law chosen by husband and wife;in the absence of such choice of law,it shall be governed by the law of husband and wife’s habitual residence or that of their nationality(Article 24);in case that husband and wife have neither common habitual residence nor nationality,the matrimonial property regime shall be governed by the law of that jurisdiction which has the most significant relationship to their matrimonial property regime(Article 2).The law chosen by husband and wife or designated by the conflict rules refers to substantive law excluding conflict of laws(Article 9).In general terms,China's Mainland’s application of law on matrimonial property regime adheres to both the current international practice and the tradition of conflict of laws for it respects the autonomy of husband and wife’s will,and designates lex personalis as the default choice of law.However,it gives husband and wife undue freedom to choose the governing law so that third parties’rights are neglected at all.Additionally,those connecting factors of lex personalis selected and the way they are arranged,not only fail to resolve both the positive conflict of nationality and that of interregional conflict of laws but make the application of'the most significant relationship'principle confusing,increasing unpredictability of application of law.