发布时间 : 星期二 文章案例更新完毕开始阅读
其他章节的案例、英文阅读材料和思考题见修订版增加内容的电子版和第二版第13-18章增加内容
第一章 涉外民事关系与国际私法
【案例1.1】一中国上海女子在美国纽约嫁给一印度孟买男子，婚后定居孟买并生儿育女。该女子不幸英年早逝，未留下任何遗嘱，但在上海和孟买均留下了价值可观的动产和不动产。其丈夫、子女及父母因析产不均发生争议，其父母诉诸上海市第一中级人民法院。
对于上述案件，上海市第一中级人民法院首先要确定这是一个国际私法案件还是国内民事案件，而确定国际私法案件的标准就是看案件所涉及的法律关系是否是涉外民事关系。从该案的事实看，站在中国的角度，继承关系的主体、客体以及继承关系发生的事实含有印度因素，因而这是一个典型的涉外继承关系，该案也是一个典型的国际私法案件。另外，与该案有关的中国女子与印度男子的夫妻关系，还含有美国因素。
【案例1.2】一中国人1995年死亡时在日本东京设有住所，并在东京留下若干动产，未立遗嘱，其继承人因析产不均诉诸日本法院。日本法院受理该涉外继承案件后，先要适用1989年修订的《日本法例》第26条关于“继承依被继承人本国法”的规定，从而认定应适用中国法律处理该涉外继承案件。但日本法院在案件审理过程中，查明中国《民法通则》第149条规定，遗产的法定继承，动产应适用被继承人死亡时住所地法律，把应适用的法律指回日本。这时，日本法院面临以下问题：究竟应依被继承人的本国法(中国法)还是他的住所地法(日本法)来处理这个继承案件呢?如果依中国法处理，是否违反日本的公共秩序？如果依日本法处理，是否能为中国继承人所接受，是否符合公正原则?等等。可见，法院在采用冲突规范调整涉外民事关系时，需要进行复杂的司法程序，判决的结果很难为当事人所预测。
【思考题】
1.下列案件涉及哪些民事关系？根据我国的法律，这些民事关系是否是涉外民事关系？
【案例1.3】“富山海轮”与波兰所属塞浦路斯船籍的集装箱船碰撞案
2003年5月31日格林尼治时间10点30分(北京时间18点30分)，在距丹麦博恩霍尔姆岛以北4海里的海域，中国远洋运输集团公司所属的“富山海轮”与一条波兰所属塞浦路斯船籍的集装箱船相撞，外轮撞到“富山海轮”左舷一、二舱之间，导致生活舱突然大量进水，“富山海轮”沉没，船上27名船员获救。
“富山海轮”船员离船前，封闭了船舶上所有的油路，避免了原油外溢造成严重的海域污染。“富山海轮”载有6.6万吨化肥，货主是中国农业生产资料集团公司，货物保险金额为870万美元。“富山海轮”船体保险金额为2050万美元。中国人民保险公司是“富山海轮”船体、货物的独家保险人。中国人民保险公司承保后，进行了再保险。“富山海轮”运载的货物出险后，中国人民保险公司迅速与国际再保险经纪人和再保险人取得联系，启动应急理赔程序，聘请律师等有关中介机构进行前期调查取证工作，分析事故原因，勘验定损，协助船东开展救助。 “富山海轮”出险后，中国人民保险公司于2003年6月6日决定预付赔款7000万人民币。“富山海轮”船体与货物保险金额为2920万美元，中国人民保险公司预计赔付金额在2亿元人民币左右，创我国国内海损赔付之最。
2.谈谈你对国际私法调整对象的理解。 3.如何正确理解国际私法的范围？ 4.试述国际私法的基本原则。 5.试述国际私法的性质。
6.你认为我国《民法通则》第142条中“国际惯例”所指为何？ 7.通过本章学习，你认为国际私法与国际经济法最大的区别在哪里？
【扩展性阅读材料】 1．韩德培、李双元：《应当重视对冲突法的研究》，《武汉大学学报（社会科学版）》1993年第6期。 2．李双元等：《关于国际私法的几个理论问题》，《中国国际私法与比较法年刊》（2001年卷），法律出版社2001年版。 3．李双元、欧福永：《国际私法研究方法之我见》，《法学论坛》2003年第3期。 4．李健男：《论国际私法的国际法因素》，《暨南学报》2005年第3期。 5．李健男：《论国际私法的社会基础》，《法学评论》2006年第5期。 6．林燕平：《对我国国际私法司法解释现象的法理分析》，《法学》2000年第5期。 7. Substantivism versus Selectivism2 1
1
参见齐湘泉：《涉外民事关系法律适用法总论》，法律出版社2005年版，第2—3页；李双元、欧福永主编：《国际私法教学案例》，北京大学出版社2007年版，第7－9页。
（1）The Original Substantivist Method
The very name of our subject “conflict of laws”, and in particular “choice of law”, presupposes that in all cases that have contacts with more than one state: (a) each involved state has an active or passive desire or claim to have its law applied; (b) that these claims “conflict” in the sense of being of roughly equal intensity and validity; and (c) that the only way to resolve the conflict is to choose the law of one of the involved states.
Each of these premises has been seriously disputed in different periods in history. For example, the last of the above premises has been rejected by what is generally regarded as one of the first recorded methods of resolving multistate problems. That method, which was employed by the Roman praetor peregrinus in adjudicating disputes between Roman and non-Roman subjects, was based on the notion of a constructive blending of the involved laws rather than on a choice from among them. The praetor resolved these disputes by constructing and applying to the case at hand a new substantive rule of decision derived from the laws of both or all involved countries. Thus, the first instinct of the legal mind when confronted with a multistate private-law dispute was one of compromise rather than of choice, eclecticism rather than all or nothing. Instead of choosing the law of one of the involved states regardless of the outcome such a choice might produce for the particular case, the praetor would focus on the needs of that case and devise for it the most appropriate substantive solution, drawn from the laws of all involved states.
This substantivist method died out before the fall of the Roman empire and, by the time Roman law was “rediscovered” in Western Europe, the idea of choosing one of the involved laws rather than blending them had set in. The modern selectivist method was thus born and soon began to dominate the international scene.
（2）Contemporary Scholastic Substantivism
During the twentieth century, the substantivist method made a fairly momentous reappearance in international and interstate commercial arbitration, where it has become the preferred method among arbitrators. The result is the production of a voluminous, if not widely publicized, body of transnational, and at the same time a national, substantive law.
In the United States, the substantivist method has also acquired new and eloquent supporters in the writings of established academic commentators, including two participants in this Symposium, Professors von Mehren and Juenger.
Professor Arthur T. von Mehren has suggested that many true conflicts can be resolved expediently by a compromise of the conflicting policies of the involved states, rather than by a full vindication of the policies of the one state and a complete subordination of those of the other state. This compromise would take the form of a special substantive rule that would be constructed ad hoc for the case at hand and would be derived from the laws of both or all involved states. For example, a true conflict between the strict liability law of one state and the law of another state that does not impose liability could be resolved by a special substantive rule that would allow the recovery of only half of plaintiff’s actual damages, or of certain items only, such as medical expenses and loss of earnings.
2
Symeon C. Symeonides, American Choice of Law at the Dawn of the 21st Century, Willamette Law Review, Vol. 37, 2001.
Professor Friedrich K. Juenger advocated a wider use of the substantivist approach. He proposed that conflicts of laws be resolved by constructing from among the involved states a rule of law that best accords with modern substantive-law trends and standards. For example, for products liability conflicts, Juenger proposed that, from among the laws of the places of conduct, injury, acquisition of the product, and domicile of the parties, the court should choose “[a]s to each issue . . . that rule of decision which most closely accords with modern standards of products liability.”
Finally, Professor Luther L. McDougal argued that, in constructing the ad hoc substantive rule of decision, courts should not confine themselves to the laws of the states involved in the conflict but should instead look beyond those laws and try to construct “the best” rule of law.
（3）Contemporary Judicial Substantivism
The above scholarly suggestions have not yet had any appreciable conscious following from the bench. However, Judge Jack B. Weinstein, another participant to this Symposium, came close to using the substantive-law solution when he proposed the development of a “national consensus law” for handling a complex product-liability class action brought by the victims of Agent Orange. In his contribution to this Symposium, Judge Weinstein seems to move in a different direction when he proposes the application of the law of the forum qua forum in a similar hypothetical case. Both of Weinstein’s proposals seem to be motivated by his profound disillusionment with the selectivist method as practiced in the United States. Such disillusionment on the part of a judge with this breadth and depth of conflicts experience should give all of us a reason for pause. This disillusionment is quite common among judges called upon to decide the complex “mega torts” discussed by Weinstein. Indeed, the selectivist method comes very close to the crashing point in coping with these cases and thus the thought of abandoning the method is entirely understandable. In ordinary single tort cases, however, the selectivist method remains dominant and its use is rarely questioned.
One possible exception to the judicial use of the selectivist method is the increasing use of dépe?age, namely the application of the laws of different states to different issues or aspects of the same cause of action. Dépe?age comes close to the substantivist method in that it leads to the creation of a hybrid substantive rule that does not exist as such in any of the involved states and that springs into existence only for the case at hand. Nevertheless, dépe?age differs from the substantivist method in that it is driven by selectivist rather than substantive considerations. It is not an intended substantive solution, but rather the unintended result of one feature of modern selectivist methods--their insistence in analyzing and resolving each issue separately (called “issue-by-issue analysis”).
On balance, the lack of contemporary judicial following of the substantivist method should not be surprising. One reason is the fact that for so long “[w]e have become so accustomed by tradition and theory to ideas of conflict, choice and selection.” A more serious reason, however, has to do with contemporary understandings about the appropriate role of judges and the hierarchy of sources of law. For, unlike some arbitrators, judges are expected to decide disputes according to law, not ex aequo et bono. The problem with the judicial version of the substantivist method is that it authorizes the retroactive application to unsuspecting litigants of a “law” that does not in fact exist anywhere until the moment the judge invents and utters it. Although it could be argued that this is no different than what judges have been doing in expanding the common law, the better view is that there is, at a minimum, a large difference in degree (the degree of pretension) and, more likely, an important difference in kind.