涉外法治视角下我国《阻断办法》的范围、效力及完善方向

The Scope, Force, and Improvements of China’s Blocking Rules from the Perspective of Foreign-Related Rule of Law

我国涉外法治建设既要求我国对违反国际法的外国法律不当域外适用进行回应,又要求这种回应必要通过“法治”的方式进行。《阻断办法》适用于跨国经贸活动,直接影响当事人之间的合同效力,对《阻断办法》的适用范围及对合同效力的影响进行分析是贯彻涉外法治理念的应有之义,然而《阻断办法》出台第一案中法院并未对此进行实质说理,此种模糊态度难免影响后续基于《阻断办法》提起诉讼的可能。本文以该案为典型例证,进一步明晰《阻断办法》的适用范围及对合同效力的影响,此二者是在涉外法治视角下实现《阻断办法》“法治化”的所必须解决的问题。在此基础上本文以涉外法治理念为指引,明确阻断法在法律性、积极性、可适用性方面的完善方向。

The Foreign-related Rule of Law in China requires both a response to the inappropriate extraterritorial application of foreign laws that violate international law, and the necessity for such a response must to be carried out through the rule of law. The Blocking Rules apply to cross-border trade, directly affecting the effectiveness of contracts between parties. Thus, it is necessary to analyze the scope of application of the Blocking rules and its impact on the validity of contracts in order to implement the concept of foreign-related rule of law. However, the court did not provide substantive reasoning on this matter in the first case of the Blocking Rules. The court’s ambiguous attitude inevitably affects the possibility of filing a lawsuits based on the Blocking Rules. Therefore, this article takes this case as a typical example to further clarify the scope of application of the Blocking Rules and its impact on the validity of the contracts. These are the issues that must be addressed in order to achieve the legalization of the Blocking Rules from the perspective of foreign-related rule of law. On this basis, this article clarified the direction for improving the legality, positivity, and applicability of the blocking law.