民法典中冲突法与实体法关系三题

冲突法与实体法并存于民法典中,是未来我国冲突法的基本存在形式。在这种情形下,如何在同一法典中协调两种不同性质法律的关系,值得思考。实际上,民法典中的冲突法即使与实体法具有相同的概念形式,其含义和范畴也大相径庭;冲突法以调整涉外民商事法律关系为要旨,其规定的内容也必然较实体法广博;更重要的是,冲突法也并非与实体法是一种直线型的“上下位”关系,冲突规范可以由当事人的合意加以排除。

On the Relation Between the Conflict of Laws and Substantive Law in Civil Code

The conflict of laws and the civil substantive law will have to co-exist in future Civil law Code of PRC. So it' s of much importance to reconcile the two different categories of laws in just one code. In fact, although a legal concept is expressed in the same legislation term, it means completely different. The conflict of laws governs the legal relationship with foreign elements, the content of which is more various than the domestic civil substantive law. Moreover, the conflict of laws is not absolutely superior to the substantive law, and sometimes it can be excluded from application by the party's common consent.