论我国民法典应当采纳反致和转致制度

反致是国际私法上一项特有的制度。一个多世纪以来 ,各国学者对它争论不休 ,莫衷一是 ,但这并不妨碍各国实践普遍采纳这一制度。究其原因 ,乃是反致制度有利于公正合理地解决国际民事纠纷 ,符合国家的利益 ,符合国际私法的宗旨和本质。虽然其也受到现代冲突法革命的冲击和挑战 ,但在各国国际私法趋于一致之前 ,仍然有其存在的价值。我国未来的民法典 (涉外篇 )应该采纳反致和转致制度 ,并适当扩大反致制度的适用范围 ,但应以必要和不造成无限循环为限。

On the Adoption of the System of Remission and Transmission

Remission is a special system of Private International Law. For more than a century, scholars all over the world have been arguing about it. However,this argument does not stop the practice of remission in different countries. This is much contributed to the fact that remission is very helpful to solve international disputes justly, which accords with individual country's interest and the purpose of Private International Law. Although remission has been much affected by the revolution and challenge of Modern Conflict Law, its existence is still needed in Private International Law before international private law in different countries converge. China's Civil Code (chapters involving with foreign affairs) in the future should adopt remission and widen its scope properly. Nevertheless, the adoption of remission should be based on the principle of necessity and should not be constrained by unlimited circle.