论近代中国的准条约与国际私法

A Study on the Quasi-A Study of Quasi-Treaties and Private International Law of Modern China

近代中国的准条约指作为国际法主体的中国国家与作为私主体的外国法人等签订的,以关乎国计民生的借款、铁路、电信、矿物等为主要内容的合同或章程。准条约不是条约却类似条约,形成近代中国不平等条约制度的一个重要组成部分。准条约属于国内法上的协议,不是中国国际私法的渊源。其规范的法律关系主要限于经济范畴,是涉外民商事关系的一部分,因而关涉国际私法。准条约在国际私法中具有特殊性:兼具公法与私法性;国家在准条约中的民商事主体地位具有特殊的不平等性;适用的法律主要为国内法。国际私法是近代废约运动中的重要理论依据,把准条约归入国际私法范畴,折射出近代中国的政治及外交生态。

The quasi-treaties of modern China refer to the contracts or charters signed by China as an entity in international law with foreign legal persons as private entities in relation to matters fundamental to the national economy and people’s livelihood,such as loans,railways,telecommunications and minerals.Quasi-treaties were not treaties but were similar to treaties,forming an integral part of China’s unequal treaty system.A quasi-treaty was an agreement in domestic law but not a source of China’s private international law.Legal relationships governed by quasi-treaties were primarily limited to the economic realm;they were part of foreign-related civil and commercial relationships and thus involved private international law.Quasi-treaties had special characteristics in private international law:they concerned both public law and private law.The status of the state as a civil entity in civil and commercial affairs was characterized by special inequality,and the law applicable to quasi-treaties was mainly domestic law.As an important theoretical basis,private international law was applied in the modern abolition movement,placing quasi-treaties into the category of private international law;this reflected the political and diplomatic ecology of modern China.