論我國(guó)涉外民事訴訟中外國(guó)判例的查明與適用
發(fā)布時(shí)間：2019-03-29 18:29
【摘要】：隨著全球化進(jìn)程的加速,涉外糾紛變得頻繁,法院在審理涉外案件時(shí)常常碰到需要適用的實(shí)體法律是外國(guó)判例的情況。本文以外國(guó)判例為研究對(duì)象,采用比較法的研究方法,論述外國(guó)判例適用的必要性與可行性、外國(guó)判例的查明與適用方法以及我國(guó)在查明和適用外國(guó)判例時(shí)存在的問題及解決途徑,試圖構(gòu)建我國(guó)查明與適用外國(guó)判例的規(guī)則,使立法更為完善、司法實(shí)踐更為統(tǒng)一有效可行。論文正文分為三個(gè)部分。論文第一部分主要論述我國(guó)涉外民事訴訟中外國(guó)判例查明與適用的現(xiàn)狀。首先,介紹判例的概念。本文所要論述的外國(guó)判例主要是指英美法系國(guó)家判例法中的判例,要區(qū)分案例、司法先例和判例的概念差別,明確外國(guó)判例這一概念在本文中的具體內(nèi)涵。其次,介紹外國(guó)判例在我國(guó)涉外民事訴訟中查明與適用的司法實(shí)踐并舉例說明。最后,介紹我國(guó)學(xué)界對(duì)適用外國(guó)判例的看法。目前,我國(guó)對(duì)適用外國(guó)判例主要有四種觀點(diǎn)：直接適用、選擇適用、補(bǔ)充適用和不予適用。本文試圖從法理上明確適用的外國(guó)法律應(yīng)當(dāng)包括判例,外國(guó)法律的淵源應(yīng)根據(jù)該外國(guó)法確定,在英美法系國(guó)家判例是其正式法律淵源,不能因?yàn)榕欣皇俏覈?guó)的法律淵源而不予適用。論文第二部分主要論述我國(guó)涉外民事訴訟中外國(guó)判例查明與適用過程中遇到的問題。從立法及相關(guān)法律解釋和司法實(shí)踐方面分析外國(guó)判例在查明與適用過程中面臨的問題和困難。論文第三部分主要論述上述問題的解決途徑,力圖構(gòu)建適合我國(guó)的外國(guó)判例查明與適用規(guī)則。在比較法研究的基礎(chǔ)上,參考借鑒外國(guó)在這些問題上已經(jīng)取得的經(jīng)驗(yàn)和成就。通過法律途徑,完善國(guó)內(nèi)相關(guān)立法規(guī)定。在外國(guó)判例的查明責(zé)任上,我國(guó)法院和當(dāng)事人應(yīng)共同承擔(dān),法院承擔(dān)主要查明義務(wù)；查明方法上采實(shí)用主義,包括立法和司法解釋以外的合法途徑；適用外國(guó)判例時(shí)要注意判例法的特殊法律推理方法,正確適用判例中的法律規(guī)則；謹(jǐn)慎對(duì)待外國(guó)判例無法查明的認(rèn)定；在無法查明外國(guó)判例時(shí)要平等對(duì)待中國(guó)法和外國(guó)判例法。此外,還要努力提升法官專業(yè)水平,重視國(guó)際溝通交流對(duì)正確查明與適用外國(guó)判例的積極作用。
[Abstract]:With the acceleration of globalization, the disputes concerning foreign affairs become more frequent, and the courts often encounter the fact that the applicable substantive law is foreign jurisprudence when trying foreign-related cases. Taking foreign jurisprudence as the object of study, this paper discusses the necessity and feasibility of the application of foreign jurisprudence by means of comparative law. The methods of identification and application of foreign jurisprudence as well as the problems existing in the identification and application of foreign jurisprudence in our country and the ways to solve them are trying to construct the rules for the identification and application of foreign jurisprudence in our country, so as to make the legislation more perfect. Judicial practice is more unified and effective. The main body of the paper is divided into three parts. The first part of the paper mainly discusses the status quo of the identification and application of foreign jurisprudence in China's civil litigation concerning foreign affairs. First of all, introduce the concept of jurisprudence. The foreign jurisprudence to be discussed in this paper mainly refers to the case law in common law countries. It is necessary to distinguish the concepts of cases, judicial precedents and precedents, and to clarify the specific connotation of the concept of foreign jurisprudence in this paper. Secondly, this paper introduces the judicial practice of identifying and applying foreign jurisprudence in our country's civil litigation concerning foreign affairs, and gives an example to illustrate it. Finally, this paper introduces the views of Chinese scholars on the application of foreign jurisprudence. At present, China has four views on the application of foreign jurisprudence: direct application, selective application, supplementary application and non-application. The foreign law that this article attempts to apply clearly from the legal principle should include the case law, the origin of the foreign law should be determined according to the foreign law, and the case law in the Anglo-American law system countries is its formal legal source, The case law cannot be inapplicable because it is not the legal source of our country. The second part mainly discusses the problems encountered in the process of identification and application of foreign jurisprudence in China's civil litigation concerning foreign affairs. This paper analyzes the problems and difficulties faced by foreign jurisprudence in the process of identification and application from the aspects of legislation and related legal interpretation and judicial practice. The third part of the paper mainly discusses the solutions to the above problems, and tries to construct the rules of identification and application of foreign jurisprudence suitable for our country. On the basis of comparative law research, reference is made to the experience and achievements made by foreign countries on these issues. Through the legal channels, improve the relevant domestic legislative provisions. China's courts and parties should bear the responsibility for ascertaining foreign jurisprudence, and the courts should bear the main duty of ascertaining, adopt pragmatism in the methods of ascertaining, including legal ways other than legislative and judicial interpretation; When applying foreign jurisprudence, we should pay attention to the special legal reasoning method of case law and correctly apply the legal rules in the case law, treat with caution the determination that foreign jurisprudence cannot be ascertained, and treat Chinese law and foreign case law equally when it is impossible to find out foreign case law. In addition, efforts should be made to improve the professional level of judges and attach importance to the positive role of international communication in the correct identification and application of foreign jurisprudence.
【學(xué)位授予單位】：福州大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2014
【分類號(hào)】：D997.3
本文編號(hào)：2449777
[Abstract]:With the acceleration of globalization, the disputes concerning foreign affairs become more frequent, and the courts often encounter the fact that the applicable substantive law is foreign jurisprudence when trying foreign-related cases. Taking foreign jurisprudence as the object of study, this paper discusses the necessity and feasibility of the application of foreign jurisprudence by means of comparative law. The methods of identification and application of foreign jurisprudence as well as the problems existing in the identification and application of foreign jurisprudence in our country and the ways to solve them are trying to construct the rules for the identification and application of foreign jurisprudence in our country, so as to make the legislation more perfect. Judicial practice is more unified and effective. The main body of the paper is divided into three parts. The first part of the paper mainly discusses the status quo of the identification and application of foreign jurisprudence in China's civil litigation concerning foreign affairs. First of all, introduce the concept of jurisprudence. The foreign jurisprudence to be discussed in this paper mainly refers to the case law in common law countries. It is necessary to distinguish the concepts of cases, judicial precedents and precedents, and to clarify the specific connotation of the concept of foreign jurisprudence in this paper. Secondly, this paper introduces the judicial practice of identifying and applying foreign jurisprudence in our country's civil litigation concerning foreign affairs, and gives an example to illustrate it. Finally, this paper introduces the views of Chinese scholars on the application of foreign jurisprudence. At present, China has four views on the application of foreign jurisprudence: direct application, selective application, supplementary application and non-application. The foreign law that this article attempts to apply clearly from the legal principle should include the case law, the origin of the foreign law should be determined according to the foreign law, and the case law in the Anglo-American law system countries is its formal legal source, The case law cannot be inapplicable because it is not the legal source of our country. The second part mainly discusses the problems encountered in the process of identification and application of foreign jurisprudence in China's civil litigation concerning foreign affairs. This paper analyzes the problems and difficulties faced by foreign jurisprudence in the process of identification and application from the aspects of legislation and related legal interpretation and judicial practice. The third part of the paper mainly discusses the solutions to the above problems, and tries to construct the rules of identification and application of foreign jurisprudence suitable for our country. On the basis of comparative law research, reference is made to the experience and achievements made by foreign countries on these issues. Through the legal channels, improve the relevant domestic legislative provisions. China's courts and parties should bear the responsibility for ascertaining foreign jurisprudence, and the courts should bear the main duty of ascertaining, adopt pragmatism in the methods of ascertaining, including legal ways other than legislative and judicial interpretation; When applying foreign jurisprudence, we should pay attention to the special legal reasoning method of case law and correctly apply the legal rules in the case law, treat with caution the determination that foreign jurisprudence cannot be ascertained, and treat Chinese law and foreign case law equally when it is impossible to find out foreign case law. In addition, efforts should be made to improve the professional level of judges and attach importance to the positive role of international communication in the correct identification and application of foreign jurisprudence.
【學(xué)位授予單位】：福州大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2014
【分類號(hào)】：D997.3
【參考文獻(xiàn)】
相關(guān)期刊論文 前1條
1 霍政欣;;美國(guó)法院查明外國(guó)法之考察[J];北京科技大學(xué)學(xué)報(bào)(社會(huì)科學(xué)版);2007年04期
，本文編號(hào)：2449777
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