国际商事合同中法律规避与意思自治的制约与权衡

在国际商事合同的准据法的确定问题上,当事人意思自治原则是各国及国际公约公认的首要原则.但在理论上及有些国家的立法中,对当事人意思自治还有一些不合理的限制,其中包括要求当事人所选择的法律必须与合同有实际联系.当事人通过改变或创设连结点的方式以使其合同表面符合有"实际联系"的要求,被认为构成国际私法上的法律规避.对此问题的澄清有利于正确认识国际私法各种制度存在的价值.通过分析得出,意思自治原则承认当事人有选择法律的自由,就等于接受了当事人有权规避某一国法律的事实.当事人规避"实际联系"并未侵害法律所保护的正当利益.国际私法不能用"实际联系"来限制当事人选择合同准据法的自由.

On Restriction and Balance between Evasion of Law and Autonomy of Will in International Commercial Contracts

As to ascertaining the governing law applicable to the international commercial contracts,the rule of autonomy of will is the primary principle widely accepted by both domestic laws of most countries and international treaties.However,in theory as well as the legislation of some countries,there are still some unreasonable restrictions on the rule of autonomy of will,including the requirement of substantial connection between the law chosen by the parties and the contract.It is deemed to be the evasion of law that the parties make their contract meet the requirement of "substantial connection" ostensibly by way of changing or establishing the connecting point.Clarification concerning this issue helps with understanding the value of various mechanisms in private international law.After analysis,a conclusion can be drawn that the parties' freedom to choose governing law itself indicates the parties' rights to evade the law of a country. Evasion of substantial connection does not damage the legitimate interests protected by law.Private international law shall not restrict the parties' freedom to choose governing law of contract with the substantial connection theory.