论美国比较损害分析方法及其对我国的启示
发布时间：2018-10-20 06:46
【摘要】：柯里(Brainerd Currie)提出的法律适用意愿分析方法曾经是法律选择方法中的异端,但自从上世纪70年代美国“冲突法革命”抛弃《冲突法重述(第一版)》的僵硬规则之后,逐渐成为一种代替旧规则的新法律选择方法。柯里认为大部分法律冲突都是“虚假的”,即只有一个州存在法律适用意愿。因此,大部分案件将会只需要适用对案件有真正法律适用意愿的州的法律。而对于比较少见的“真实冲突”,柯里主张适用法院地法。柯里法律适用意愿分析方法在提出之后的30多年间遭到种种责难,批评意见主要是这个方法对州法律适用意愿解释过于狭窄,甚至是违宪的。 与柯里同时代的白柯斯特(William Baxter)教授是柯里法律适用意愿分析方法的拥护者,他唯一不能认同的是柯里对“真实冲突”的解决办法。他用柯里分析真假冲突的逻辑进一步讨论解决“真实冲突”的办法,继而提出“比较损害分析方法”理论。他认为,在解决真实冲突案件的时候,应当最大可能地减少对所有州的法律适用意愿的损害。为了达到这个目的,应当适用一旦未适用其法律,则其法律适用意愿就受到更大损害的州的法律。比较损害分析方法对法律适用意愿方法进行了改进,避免对各州法律政策的“价值论断”,解决了法律适用意愿方法被学者批判的许多缺点,已经为加利福尼亚州法院和路易斯安那州的司法和立法所采纳并适用至今。 目前国内学界对柯里的法律适用意愿分析方法已经较为熟悉,但是对于比较损害分析方法却研究不足。很多学者对比较损害分析方法没有正确理解,甚至存在误解,将比较损害分析方法与法律适用意愿分析方法混同。有的学者甚至将比较损害分析方法与最密切联系原则想混同。路易斯安那州于1991年首次将比较损害分析方法纳入成文法中,但是在引入我国的时候,国内有的学者却错误地将这个方法解释为“如果案件与若干州有关,则适用与案件‘有最密切联系’的州的法律”。 本文将全面介绍比较损害分析方法的理论发展及司法经验,对我国法院在解决法律选择冲突的问题上提供一个新的视角。 文章第一章将介绍比较损害分析方法提出的法理基础、具体内容。第二章将介绍加利福尼亚州的比较损害分析方法的适用经验。第三章主要介绍路易斯安那州严重损害分析方法的立法及适用。第四章将结合加利福尼亚州法院和路易斯安那州的立法、司法经验对比较损害分析方法的适用做总结,试探讨其对我国法院在处理冲突法案件的实务中的启示。
[Abstract]:Corey (Brainerd Currie) 's method of analyzing the willingness to apply law was once a heresy in the method of choice of law, but since the American "conflict of laws revolution" in the 1970s abandoned the rigid rules of "conflict of laws restatement" (first edition), It has gradually become a new method of choice of law in place of the old rules. Curry believes that most conflicts of law are "false", meaning that only one state has the will to apply the law. As a result, most cases will only need to apply the laws of the states that have the real will to apply the law to the case. For the relatively rare "conflict of truth", Curry advocated the application of the law of the forum. Curry's analysis of the willingness to apply the law has been criticized for more than 30 years since it was put forward. The criticism is that the method is too narrow and even unconstitutional in interpretation of the intention of application of state law. Professor Baxter (William Baxter), a contemporary of Curry, is a proponent of Curry's willingness to apply the law. The only thing he can't agree with is Curry's solution to the "conflict of truth." He further discusses the solution of "real conflict" by using the logic of Curry's analysis of true and false conflict, and then puts forward the theory of "comparative damage analysis method". He believes that in resolving real conflict cases, the damage to the will to apply the law to all states should be minimized. To that end, the law of a state whose will to apply would have been more impaired if its law had not been applied should be applied. Compared with the method of damage analysis, it improves the method of the willingness to apply the law, avoids the "value judgment" of the legal policy of the states, and solves many shortcomings of the method of the willingness to apply the law which has been criticized by the scholars. It has been adopted and applied to the courts of California and Louisiana. At present, the domestic academic circles are familiar with Curry's analysis method of law application intention, but the research on comparative damage analysis method is not enough. Many scholars do not have a correct understanding of the comparative damage analysis method, or even misunderstand it, and mix the comparative damage analysis method with the law applicable will analysis method. Some scholars even compare the damage analysis method with the principle of the closest connection. Louisiana first introduced the method of comparative damage analysis into statute law in 1991, but when it was introduced into our country, some domestic scholars mistakenly interpreted it as "if the case is related to several states, The laws of the states most closely related to the case shall apply. " This paper will comprehensively introduce the theoretical development and judicial experience of comparative damage analysis, and provide a new perspective for Chinese courts to resolve the conflict of choice of law. The first chapter will introduce the legal basis and content of comparative damage analysis method. The second chapter introduces the applicable experience of the California comparative damage analysis method. The third chapter mainly introduces the legislation and application of the Louisiana severe damage analysis method. The fourth chapter will combine the California court and the Louisiana legislation, the judicial experience will make the summary to the comparison damage analysis method application, tries to discuss its to our country court in the handling conflict law case practice enlightenment.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D997
本文编号：2282355
[Abstract]:Corey (Brainerd Currie) 's method of analyzing the willingness to apply law was once a heresy in the method of choice of law, but since the American "conflict of laws revolution" in the 1970s abandoned the rigid rules of "conflict of laws restatement" (first edition), It has gradually become a new method of choice of law in place of the old rules. Curry believes that most conflicts of law are "false", meaning that only one state has the will to apply the law. As a result, most cases will only need to apply the laws of the states that have the real will to apply the law to the case. For the relatively rare "conflict of truth", Curry advocated the application of the law of the forum. Curry's analysis of the willingness to apply the law has been criticized for more than 30 years since it was put forward. The criticism is that the method is too narrow and even unconstitutional in interpretation of the intention of application of state law. Professor Baxter (William Baxter), a contemporary of Curry, is a proponent of Curry's willingness to apply the law. The only thing he can't agree with is Curry's solution to the "conflict of truth." He further discusses the solution of "real conflict" by using the logic of Curry's analysis of true and false conflict, and then puts forward the theory of "comparative damage analysis method". He believes that in resolving real conflict cases, the damage to the will to apply the law to all states should be minimized. To that end, the law of a state whose will to apply would have been more impaired if its law had not been applied should be applied. Compared with the method of damage analysis, it improves the method of the willingness to apply the law, avoids the "value judgment" of the legal policy of the states, and solves many shortcomings of the method of the willingness to apply the law which has been criticized by the scholars. It has been adopted and applied to the courts of California and Louisiana. At present, the domestic academic circles are familiar with Curry's analysis method of law application intention, but the research on comparative damage analysis method is not enough. Many scholars do not have a correct understanding of the comparative damage analysis method, or even misunderstand it, and mix the comparative damage analysis method with the law applicable will analysis method. Some scholars even compare the damage analysis method with the principle of the closest connection. Louisiana first introduced the method of comparative damage analysis into statute law in 1991, but when it was introduced into our country, some domestic scholars mistakenly interpreted it as "if the case is related to several states, The laws of the states most closely related to the case shall apply. " This paper will comprehensively introduce the theoretical development and judicial experience of comparative damage analysis, and provide a new perspective for Chinese courts to resolve the conflict of choice of law. The first chapter will introduce the legal basis and content of comparative damage analysis method. The second chapter introduces the applicable experience of the California comparative damage analysis method. The third chapter mainly introduces the legislation and application of the Louisiana severe damage analysis method. The fourth chapter will combine the California court and the Louisiana legislation, the judicial experience will make the summary to the comparison damage analysis method application, tries to discuss its to our country court in the handling conflict law case practice enlightenment.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D997
【参考文献】
相关期刊论文 前1条
1 张潇剑;评柯里的“政府利益分析说”[J];环球法律评论;2005年04期
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