全球化时代的中国民法典:属地主义之超越
发布时间：2018-10-24 08:48
【摘要】：民商事立法中的地域适用范围条款关涉民法与国际私法的关系。国际私法这门学科本身就是要解决私法的地域适用范围。刚刚颁布的《民法总则》第12条仍然延续了30年前《民法通则》第8条关于民法地域适用范围的规定,但该规定是绝对属地主义原则的反映,它起源于封建社会,已经被19世纪以来现代国际私法理论所抛弃。我国多数法律之所以采纳该原则,一方面是对近代西方列强在华治外法权的深恶痛绝,另一方面是受前苏联法律的影响。事实上,现代国际私法的基本理论预设是各国在一定条件下相互适用其他国家的民商法,因此,绝大多数国家的民法典都不再规定地域适用范围。在国际政治法治化、国际经济全球化、国际社会信息化、国际文化多元化的当下,以民法典为代表的国内民商法的适用不应囿于一国领域范围之内,各国法律之间的交互适用已经成为常态。中国要大力推进自由贸易区和"一带一路"建设,我国未来的民法典及其他民商事立法都应该摒弃绝对属地主义观念,运用国际私法思维,树立"中国立法、世界适用"的理念。
[Abstract]:The scope of territorial application in civil and commercial legislation concerns the relationship between civil law and private international law. The subject of private international law itself is to solve the scope of territorial application of private law. Article 12 of the General principles of Civil Law, which has just been promulgated, still extends the provisions of Article 8 of the General principles of Civil Law 30 years ago on the scope of territorial application of civil law, but this provision is a reflection of the principle of absolute territorialism, which originated in the feudal society. It has been abandoned by modern private international law theory since the 19 th century. The reason why most laws of our country adopt this principle is that, on the one hand, they abhor the extraterritorial power of modern western powers in China, on the other hand, they are influenced by the law of the former Soviet Union. In fact, the basic theoretical presupposition of modern private international law is that the civil and commercial laws of other countries are applied to each other under certain conditions. Therefore, the civil codes of most countries no longer stipulate the scope of territorial application. With the rule of law in international politics, the globalization of international economy, the informationization of international society and the diversity of international culture, the application of civil and commercial law, represented by civil code, should not be confined to the scope of a country. The reciprocal application of national laws has become the norm. China should vigorously promote the construction of free trade zones and "Belt and Road." China's future civil code and other civil and commercial legislation should abandon the concept of absolute territorialism, apply the thinking of private international law, and establish "Chinese legislation." The idea that the world is applicable.
【作者单位】： 华东政法大学国际法学院;武汉大学法学院;
【分类号】：D923
，
本文编号：2290903
[Abstract]:The scope of territorial application in civil and commercial legislation concerns the relationship between civil law and private international law. The subject of private international law itself is to solve the scope of territorial application of private law. Article 12 of the General principles of Civil Law, which has just been promulgated, still extends the provisions of Article 8 of the General principles of Civil Law 30 years ago on the scope of territorial application of civil law, but this provision is a reflection of the principle of absolute territorialism, which originated in the feudal society. It has been abandoned by modern private international law theory since the 19 th century. The reason why most laws of our country adopt this principle is that, on the one hand, they abhor the extraterritorial power of modern western powers in China, on the other hand, they are influenced by the law of the former Soviet Union. In fact, the basic theoretical presupposition of modern private international law is that the civil and commercial laws of other countries are applied to each other under certain conditions. Therefore, the civil codes of most countries no longer stipulate the scope of territorial application. With the rule of law in international politics, the globalization of international economy, the informationization of international society and the diversity of international culture, the application of civil and commercial law, represented by civil code, should not be confined to the scope of a country. The reciprocal application of national laws has become the norm. China should vigorously promote the construction of free trade zones and "Belt and Road." China's future civil code and other civil and commercial legislation should abandon the concept of absolute territorialism, apply the thinking of private international law, and establish "Chinese legislation." The idea that the world is applicable.
【作者单位】： 华东政法大学国际法学院;武汉大学法学院;
【分类号】：D923
，
本文编号：2290903
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