海峡两岸冲突法反致制度立法初探——兼谈反致与两岸民商事法律冲突的解决

在海峡两岸的冲突法立法中,反致制度有着不同的表现形式与特点。我国台湾地区立法一直对反致持肯定的态度,规定接受当事人本国法的广义的反致,立法较为全面。但在涉及有关合同、国籍的消极冲突、区际冲突等问题的法律适用时是否采用反致尚存疑问,其反致制度不论在内容上还是立法技术上都有需要完善之处。祖国大陆现行立法对反致制度没有明确的规定,从《示范法》及《民法(草案)》的有关内容来看,主流观点不是一概地拒绝反致,表现出例外接受反致的立法倾向。反致有利于实现冲突法的价值取向,有利于解决海峡两岸特殊的区际法律冲突,祖国大陆应借鉴他人的立法经验,明确接受并建立自己科学、合理的反致制度。

On Laws Concerning Renvoi in the Law of Conflict of Laws in Mainland China and Chinese Taiwan

As to renvoi, the laws concerning conflict of laws made by the mainland and Chinese Taiwan are different in form and characteristics. Laws in the Taiwan district are somewhat comprehensive and have always held an affirmative attitude towards renvoi and accept the term in a general meaning in the domestic law of the party concerned. However, they leave the question open as to whether to apply renvoi in dealing with negative conflicts related to contracts, nationalities and interregional conflicts. Such an institution needs to be improved, both in terms of the substance and in terms of legislative technical skills. The present legislation of Mainland China has no explicit provision as to renvoi. Based on the relevant provisions in the Model Law and Civil Code (draft), the prevailing opinion is not to reject renvoi entirely but shows a tendency to adopt it in exceptional circumstances. Renvoi is conducive to realizing the value of the conflict laws and to settling the special cross-strait interregional conflicts of law. Therefore, Mainland China should refer to the legislation of others and explicitly accept and establish a scientific and reasonable renvoi system of its own.