论异地侵权行为法律适用中的受害人权益之保护
发布时间：2018-08-03 21:14
【摘要】：异地侵权责任的准据法确定必须重视对受害人权益的保护,但如何实现历来是一个难题。对此,我国刚刚生效的涉外民事关系法律适用法无论是一般规定还是侵权行为的相关规定都未作任何规定。因此显然有必要对新法的相关规定予以修订。而各国的确定异地侵权行为准据法的立法例大致可分为侵权行为实施地、侵害结果发生地及偏在理论等三种方式。由于过度强调加害人的利益,第一种方式不宜采用。而由于兼顾对受害人权益和当事人双方预见可能性的保护,侵害结果发生地的方式显然更为合理。因此,在很难大幅扩充特殊侵权责任单独规定的情况下,法律适用法第44条前半部分宜转采以侵害结果发生地为系属的准据法确定方式。
[Abstract]:The applicable law of tort liability in different places must pay attention to the protection of victims' rights and interests, but how to realize it has always been a difficult problem. In this regard, the law applicable to civil relations concerning foreign affairs, which has just come into effect in China, has not made any provisions either in general or in the relevant provisions of tort. Therefore, it is clearly necessary to amend the relevant provisions of the new law. The legislative cases of determining the applicable law of tort in different countries can be roughly divided into three ways: the place where the tort is committed, the place where the result of infringement occurs and the deviation in theory. As too much emphasis on the interests of perpetrators, the first approach should not be used. However, due to the protection of victims' rights and interests and the possibility of both parties' foresight, the way of infringing the place of occurrence is obviously more reasonable. Therefore, if it is difficult to expand the special tort liability separately, the first part of article 44 of the applicable law should adopt the method of determining the law which belongs to the place where the result of infringement occurs.
【作者单位】： 上海海事大学法学院;
【分类号】：D920.0
，
本文编号：2163015
[Abstract]:The applicable law of tort liability in different places must pay attention to the protection of victims' rights and interests, but how to realize it has always been a difficult problem. In this regard, the law applicable to civil relations concerning foreign affairs, which has just come into effect in China, has not made any provisions either in general or in the relevant provisions of tort. Therefore, it is clearly necessary to amend the relevant provisions of the new law. The legislative cases of determining the applicable law of tort in different countries can be roughly divided into three ways: the place where the tort is committed, the place where the result of infringement occurs and the deviation in theory. As too much emphasis on the interests of perpetrators, the first approach should not be used. However, due to the protection of victims' rights and interests and the possibility of both parties' foresight, the way of infringing the place of occurrence is obviously more reasonable. Therefore, if it is difficult to expand the special tort liability separately, the first part of article 44 of the applicable law should adopt the method of determining the law which belongs to the place where the result of infringement occurs.
【作者单位】： 上海海事大学法学院;
【分类号】：D920.0
，
本文编号：2163015
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