【作者】 李静；

【导师】 那力；

【作者基本信息】 吉林大学 ， 法律， 2008， 硕士

【摘要】 中国区际法律冲突是指内地、香港、澳门和台湾四个法域相互之间,在民商事交往中由于适用不同法律制度而导致的法律冲突。中国四法域中因为存在不同社会制度,属于不同法系,各有独自的司法权、终审权和最高法院,在适用本地法律和国际条约方面的规定不同,而且属于单一制国家内部中央与地方适用法律不同,使中国区际法律冲突呈现其独有的特点。在香港与澳门回归祖国以后,由于中国区际法律冲突方面没有相关立法,造成司法实践中无法可依的局面。法律冲突使法律丧失其可信性,丧失其功能和权威,而和谐社会应该是利益、权力冲突得到有效缓解、协调和控制的社会,因此,如何解决中国的区际法律冲突成为一个现实而又迫切的问题。本文针对中国区际法律冲突的特殊性,从区际冲突法、统一实体法、区际司法协助、判例法的运用等方面提出了解决方法。更多还原

【Abstract】 Inter-regional conflict of laws is a rather new concept to Chinese legal scholars. For over four decades, ever since the People’s Republic of China (PRC) was established in 1949, China has had a unitary socialist legal system with a single legal district. Inter-regional conflict of laws results from the policy of "one country, two systems."When HongKong and Macao revert to Chinese control as provided by the joint declarations and the basic laws, the laws currently in effect in the two regions will remain basically unchanged, both will continue to exercise independent legislative, judicial, and final adjudicative powers to maintain the prosperity and stability of the regions. This will transform China from a unitary and hierarchical socialist legal system into a plural legal system, which includes elements of socialist law, common law, and civil law. In addition, the PRC, previously a country with a single law district, will become a country with two systems and three law families and four compound legal regions.Interactions among China, HongKong, Macao, and Taiwan have increased substantially over the last few years. The reversion of HongKong and Macao to China and the prospective unification of Taiwan Area with China will increase these interactions even more. The different legal systems adopted in the Mainland, HongKong, Macao, and Taiwan, will inevitably create questions as to which regional law should be applied and whether courts in different regions will recognize and enforce the judgments of the courts of other regions. In searching for the solutions, Chinese jurists should be guided by two objectives of the "one country, two systems" Policy: maintaining the unity of the country and promoting normal civil and commercial intercourse between the PRC and the SARs under general principles of equality and mutual benefit.Because of the complex nature and the unique characteristics of China’s emerging inter-regional conflicts of law are wholly unprecedented and therefore require fresh examination and creative thinking.The strategies and recommendations in this paper may be of some use in increasing the likelihood of the successful implementation of the "one country, two systems" principle. Furthermore, China’s prospective, yet by no means insignificant, legal development, may be an enlightening experience that will contribute to China’s post-Deng Xiaoping political system. Having "three law families" and "four compound regions" will undoubtedly encourage China to progress in the direction of pluralism and, perhaps, even toward some kinds of federalism in the foreseeable future.In the short run, the Mainland, HongKong, Macao, and Taiwan should use their own existing private international conflicts rules to address inter-regional conflict of laws, or formulate new rules for resolving inter-regional conflict of laws. Next, as an intermediate step, on the basis of full negotiations and coordination among the various regions, a set of nationally unified conflicts rules should be enacted to solve the inter-regional conflict of laws. These conflicts rules should remain effective for a fairly long time in keeping with the principle of "one country, two systems,"which China has pledged to maintain at least 2047. In the long run, however, if the laws of the PRC and its SARs are to ever become fully integrated, a set of nationally unified substantive laws on a limited number of issues must be enacted. The earliest this could happen would be fifty years after the establishment of the HongKong SAR. By then, however, the unification of China’s legal system, perhaps unlike China’s territorial unification, may not even be considered a desirable objective. Alternatively, the Mainland and the various regions may choose to adopt identical or similar substantive laws to either avoid or eliminate inter-regional conflict of laws in those subject areas. Progress toward unifying substantive law could occur simultaneously with the interim measure of adopting uniform conflicts rules, but this long-term approach should not, and cannot, replace the above interim measure. If these steps can be achieved, the national legal system will move closer to true unification.更多还原