后果主义论证方法在“有利于”冲突规范中的应用

The Application of Consequentialist Demonstration Method in the Conflict Rule of “Favor”

《涉外民事关系法律适用法》规定了“有利于”冲突规范,审判实践中法官在适用此类冲突规范时,面临运用传统法律选择方法无法证明其所选择之法具有实质合理性的困境。为了解决上述困境,本文主张应采用后果主义论证方法来正当化“有利于”冲突规范的找法过程。后果主义论证方法有其正当性,但也存在合法性与合理性危机。为弥补其不足,应当在厘清传统法律选择方法与后果主义论证方法关系的前提下,增加后果主义论证方法的检验方法,从而保证判决合法性的同时,实现法律选择的合理性和可预测性。

The Law on the Application of Laws in Foreign Civil Relations stipulates the conflict rules of “favor”. In the trial practice, when judges apply such conflict rules, they are faced with the dilemma that using traditional methods of law selection cannot prove the substantive rationality of the law they choose. In order to solve the above dilemma, this paper argues that the method of consequentialism should be adopted to legitimize the process of finding law that is “conducive” to conflict rules. The method of consequentialism argument has its legitimacy, but there is also a crisis of legitimacy and rationality. In order to make up for its shortcomings, we should add the testing method of the method of consequentialism demonstration on the premise of clarifying the relationship between the traditional method of choice of law and the method of consequentialism demonstration, so as to ensure the legitimacy of the judgment and realize the rationality and predictability of the choice of law.