论实质正义优先之下的外国法查明问题

冲突正义和实质正义是国际法理论的传统命题,冲突正义解决了选择最合适的外国法的问题,但是如何查找和适用外国法,却无法从冲突正义的框架和逻辑中寻求解决。内国法官对于查明外国法的消极和被动,是外国法查明问题的困境。对内国法官直接适用内国法的否定依据主要来自于对当事人意思自治的忽视。但问题在于,当事人意思自治是司法正义的一方面,公正的裁判结论是最终性的。实质正义优先正在成为国际私法理论的趋势,全球化推动了国际民商事法律共同理论的形成,这一意义上,内国法官由于时效和成本的考虑,选择适用内国法,只要最终的裁判结论是合于司法正义的,就不应受到责难。但是外国法查明仍然是国际私法最为重要的任务,因此采用内国法官裁量适用外国法为主、立法限制适用内国法为辅的规制范式,可能更为适宜。

On the Ascertainment of Foreign Law under the Priority of Substantive Justice

Conflict justice and substantive justice are the traditional propositions of international law theory. Conflict justice solves the problem of choosing the most suitable foreign law. However, how to find and apply foreign law cannot be solved from the framework and logic of conflict justice. The passivity of domestic judges in identifying foreign laws is a dilemma in the identification of foreign laws. The negative basis for domestic judges to directly apply domestic law mainly comes from the neglect of party autonomy. But the problem is that party autonomy is an aspect of judicial justice, and a fair judgment conclusion is final. Priority of substantive justice is becoming the trend of private international law theory. Globalization has promoted the formation of a common theory of international civil and commercial law. In this sense, domestic judges choose to apply domestic law due to statute of limitations and cost considerations, as long as the final judgment conclusion is consistent. For judicial justice, it should not be blamed. However, the identification of foreign law is still the most important task of private international law. Therefore, it may be more appropriate to adopt a regulatory paradigm that mainly applies foreign law at the discretion of domestic judges and supplements the application of domestic law with legislative restrictions.