国际私法中的法律规避制度:再生还是消亡  

Evasion of Law in Private International Law:Rebirth or Discarded?

作　　者：许庆坤[1] 

机构地区：[1]山东大学法学院

出　　处：《法学研究》2013年第5期195-208,共14页Chinese Journal of Law

基　　金：国家社会科学基金一般项目"我国涉外民事关系法律适用法司法难点研究"(12BFX138);教育部人文社会科学研究规划基金项目"涉外民事关系法律适用法的司法解释问题研究"(11YJA820091)的阶段性成果

摘　　要：法律规避制度源自法国冲突法规则稀缺时代的最高法院判例,其本质为公共秩序保留制度的特殊形态,旨在惩戒不良意图,有违冲突法的确定性和立法宗旨,背离冲突法演进的世界潮流。国外相关立法数量稀少且乱象丛生,司法实践异常罕见且功效不佳。基于我国的相关制度和司法实践,最高人民法院理应抛弃其司法解释中的相关规定,借助先进的"直接适用的法"制度和传统的公共秩序保留制度,编织维护国家利益和个案公平的"安全网"。The principle of evasion of law was originated from the decision by French Cour de Cassa- tion when the rules of conflict law were scarce. It is essentially a special form of the principle of pub- lic order. Its purpose is to punish a person＇ s improper intention to circumvent the law. Consequently the definition of the intention of evasion is of paramount importance in the constitutive elements of e- vasion of law. However, a wide gulf exists between the subjectivity of the intention of evasion and the objectivity of judicial ascertainment. It frequently leads to the judicial tyranny, which significantly encroaches upon the logical harmony and the fundamental aim of the conflict law system. The modern conflict law regime is developing towards flexibility and diversification, putting more weight to party autonomy and human rights, while the principle of evasion of law runs counter to such a world trend. In France, the birthplace of the principle, it has passed into history. The Russian principle of evasion of law, which was imitated by several members of Commonwealth of Independent States （CIS）, was stillborn soon after its draft was published. In the world, the corresponding stat- utes are scarce and in chaos. The judicial practices are very little and without good result either. In fact, the world - renowned Bauffremont Affair should not be treated as a classic case. In China, the principle of evasion of law is inconsistent with many existing rules of law and has not been proved necessary by the past judicial practices. Therefore the Supreme People＇ s Court of China shall abandon this outdated and obsolete principle, and make use of the advanced principle of the law of immediate application （lois d＇ application immediate） and the traditional principle of public order to establish a ＂safety network＂ to protect national interests and strive for individual justice.

关 键 词：法律规避 司法解释 公共秩序保留 直接适用的法 

分 类 号：D997[政治法律—国际法学]