论英美法系国家判例法的查明和适用

我国学者和法官对是否应该适用英美法系国家的判例法有不同认识,也没有探讨判例法的具体查明途径及适用方法。本文认为:不管判例法是不是我国国际私法的法律渊源,当我国的冲突规范指定适用外国的判例法时,我国法院应该适用外国的判例法;在此情况下,查明外国的判例法是法官和当事人的共同义务;法院应该采取多种方法,包括我国司法解释规定的五种途径以外的其他方法查明外国的判例法。适用外国的判例法一般就是采用类比方法或者区分辨别方法适用判例中确定的法律规则(Ratio);而且,如果当事人对英美法系国家判例法规则达成了一致,我国法院可以直接适用该判例法规则,不需要通过其他查明途径。

The Searching and Application of Precedents in Anglo-American Legal System

Chinese scholars and judges have not reached consensus on whether case law of Anglo-American States should be applied, nor have they explored the specific channels of ascertainment as well as the methods of its application. This article submits that foreign case law shall be applied by Chinese courts if it is referred to by the choice-of-law rules of the forum, regardless of whether it is one of the sources of Chinese private international law. Within such setting, the ascertainment of foreign case law is the common duty shared by the judges and the parties as well. The courts should ascertain foreign case law by various means, including yet not confined to the five channels provided in the Judicial Interpretation by the Supreme People's Court. In general, the application of foreign case law is to apply the Ratios established in the cases by way of analogy and distinguishing. Moreover, when the parties have the same understanding of the rule of foreign case law, the court may apply it directly so as to save the process of ascertainment.