CHAPTER FOUR General Issues Concerning the Choice of Law Rules(冲突规范的一般问题) Section 1 Characterization (识别) Section 2 Applocation of International Convention(国际公约的适用) Section 3 Mandatory Provision (强制性规定） Section 4 Incidental Question(先决问题) Section5 Evasion of Law (法律规避) Section 6 Renvoi (反 致) Section 7 Proof of Foreign Law (外国法内容的查明) Section 8 Public Policy (公共秩序保留)

问题： 识别（定性）问题是个什么问题？（是如何识别的问题？还是依哪个法域的法律识别的问题？），我国如何解决识别问题？ 我国应如何适用统一实体法国际公约：评最高人民法院关于适用《涉外民事关系法律适用法》若干问题的解释（一）相关规定。 如何界定《涉外民事关系法律适用法》第四条的应直接适用的强制性规定？我国实体法中有第四条所指的强制性规定吗？（案例研究） 法律规避制度解决什么问题？在我国是否还需要这一制度？

先决问题是个什么问题？（是个需要先行解决的问题？还是该问题的法律适用问题？）什么条件下才会成为一个争议的问题？争议的焦点是什么？我国是如何处理这样的问题的？ 什么是反致？我国对反致是什么态度？你对反致是什么态度？ 外国法如何适用？——谁负有查明外国法的责任？如何才算完成了查明的责任？ 什么是公共秩序保留制度？其存在的价值是什么？

Section 1 Characterization 1. Definition In a conflict-of-law situation, a court must determine at the outset whether the problem presented to it for solution relates to torts, contracts, property, or some other field, or to a matter of substance or procedure, in order to refer to the appropriate law. In other words, the court must initially, whether consciously or not, go through the process of determining the nature of the problem. Otherwise, the court will not know which choice-of-law rule to apply to the case. This process is generally called ‘characterization’, and sometimes ‘classification’, ‘qualification’, or ‘interpretation.’

The process of ‘characterization’ is necessary because sometimes domestic law may regard a case as falling into one legal category but the relevant foreign law believes it to belong in a different one. This process is undertaken also in cases which do not contain a foreign element; a court may be called upon to determine whether the issue sounds in contract or in tort, or whether property is realty or personalty, but it is obviously more difficult where a foreign element is present.

Re Maldonado Maldonado is a woman domiciled in Spain who died intestate and without living relatives. She left movable property in England, which was claimed by both the Spanish Government and the British Crown. This raised the question whether the applicable rule was that of Spanish law, which said that it went to the Spanish state, or English law, which said that it escheated to the Crown. This in turn depended on whether it came within the scope of the conflict rule which provides that succession to movables is governed by the law of the deceased’s domicile (in which case the Spanish rule would apply) or whether it simply raised a question of ownerless property, bona vacantia, in which case it would be covered by the rule that title to property is governed by the law of the place where the property is situated. Since the property in question was in England, this would lead to the application of the English rule.

The court of Appeal held that since, under Spanish law, the Spanish state succeeded to property in such a situation as the final heir, it was entitled to the movables in England. The English rule never came into the picture because the property was never ownerless; on the death of the deceased it passed to the Spanish state. If, on the other hand, the Spanish state had not claimed the property under the law of succession, but on some other basis _ for example, as bona vacantia _ the position would have been different.

马尔多那多是西班牙一个寡妇，1924年死于西班牙，死亡时住所地在西班牙，死后留下一笔存放于英国某银行的股票，价值高达2 马尔多那多是西班牙一个寡妇，1924年死于西班牙，死亡时住所地在西班牙，死后留下一笔存放于英国某银行的股票，价值高达2.6万英镑。马尔多那多生前未留遗嘱，也没有任何亲属。于是西班牙政府在英国法院提起诉讼，要求以死者唯一继承人的身份取得马尔多那多留在英国的遗产。被告英国财政部则主张该遗产为无人继承遗产，是无主物，应归英国政府所有。 该案中，英国法院首先要面临一个识别问题，即本案到底是属于财产继承问题还是属于无主物的归属问题。

如果按照法院地法（英国法）识别，该财产是无人继承财产，该案就成为无主物的归属问题。按照英国法律，无主物的归属按照财产所在地法律即英国法，应当归英国所有。而如果按照西班牙法律进行识别，则该财产属于有人继承的财产，该案件也成为一个财产继承案件，应当按照英国关于财产继承的冲突规范确定准据法。按照英国冲突规则，动产无遗嘱继承适用被继承人死亡时住所地法，即西班牙法律。按照西班牙法律，西班牙政府以最后继承人身份获得该遗产。 back

2 .Solutions to the problem of characterization A. The lex fori theory(法院地法说):the court should characterize the issue in accordance with the categories of its own domestic law. It has been the prevailing theory on the Continent. B. The lex causae theory (准据法说):classification should be effected by adopting the categories of the governing law. C. Analytical jurisprudence and comparative law(分析法学与比较法说): conflicts rules should use 'conceptions of an absolutely general character', and that these conceptions are borrowed from analytical jurisprudence, that general science of law, based on the results of the study of comparative law, which extracts from this study essential general principles of professedly universal application - not principles based on, or applicable to, the legal system of one country only. D. Falconbrigde’s views: The Canadian lawyer, Falconbridge, proposed a two-stage process. The first stage, a task for the lex fori, is to define the scope of the legal category, the categories not being those of the domestic legal system but of its private international law, and the second is to examine the relevant foreign rule in its own context to see whether it can be fitted into the legal category in question.

A survey on legislations reveals that the lex fori theory is preferred A survey on legislations reveals that the lex fori theory is preferred. For example, the British Private International Law (Miscellaneous Provisions) Act 1995 (c. 42 ) provides in its Art.9(2) that ‘the characterisation for the purposes of private international law of issues arising in a claim as issues relating to tort or delict is a matter for the courts of the forum’; the Oregon’s Act On Choice-Of-Law For Torts And Other Non-Contractual Claims provides that ‘ (1) The law of Oregon determines the scope and meaning of terms used in sections 1 to 12 of this 2009 Act, including whether a claim is a non-contractual claim. (2) The law of the state determined to be applicable under sections 1-12 of this 2009 Act determines the scope and meaning of terms used in that law’. Our newly enacted Law on the Law Applicable to Civil Relations Containing Foreign Element also provides in Art.8 that ‘the law applicable to the characterization of a civil relation containing foreign element shall be the law of the forum’.

Section 2 The Application of International Convention 法释〔2012〕24号 最高人民法院关于适用《中华人民共和国涉外民事关系法律适用法》若干问题的解释（一） 第四条 涉外民事关系的法律适用涉及适用国际条约的，人民法院应当根据《中华人民共和国民法通则》第一百四十二条第二款以及《中华人民共和国票据法》第九十五条第一款、《中华人民共和国海商法》第二百六十八条第一款、《中华人民共和国民用航空法》第一百八十四条第一款等法律规定予以适用，但知识产权领域的国际条约已经转化或者需要转化为国内法律的除外。

《民法通则》第八章 第一百四十二条 涉外民事关系的法律适用，依照本章的规定确定。 中华人民共和国缔结或者参加的国际条约同中华人民共和国的民事法律有不同规定的，适用国际条约的规定，但中华人民共和国声明保留的条款除外。

CISG的适用： 1.蒂森克虏伯冶金产品有限责任公司（ThyssenKrupp Mentallurgical Products Gmbh）与中化国际（新加坡）有限公司（Sinochem International (Overseas) Pte Ltd）其他买卖合同纠纷二审民事判决书【（2013）民四终字第35号】 2.胜奈德有限公司与济南明泉笔业有限公司国际货物买卖合同纠纷二审民事判决书【（2014）鲁民四终字第80号】 《雅典公约的适用》： 羊某某案（蓝宝石公主号案）【（2016）沪72民初2336号】

法释〔2012〕24号 最高人民法院关于适用《涉外民事关系法律适用法》若干问题的解释（一） 第九条 当事人在合同中援引尚未对中华人民共和国生效的国际条约的，人民法院可以根据该国际条约的内容确定当事人之间的权利义务，但违反中华人民共和国社会公共利益或中华人民共和国法律、行政法规强制性规定的除外。

section 3 Madatory Provision 《涉外民事关系法律适用法》第四条　中华人民共和国法律对涉外民事关系有强制性规定的，直接适用该强制性规定。 法释〔2012〕24号 最高人民法院关于适用《涉外民事关系法律适用法》若干问题的解释（一）第十条 有下列情形之一，涉及中华人民共和国社会公共利益、当事人不能通过约定排除适用、无需通过冲突规范指引而直接适用于涉外民事关系的法律、行政法规的规定，人民法院应当认定为涉外民事关系法律适用法第四条规定的强制性规定：

（一）涉及劳动者权益保护的； （二）涉及食品或公共卫生安全的； （三）涉及环境安全的； （四）涉及外汇管制等金融安全的； （五）涉及反垄断、反倾销的； （六）应当认定为强制性规定的其他情形。 作业：查找案例？

Section 4 Incidental Question Suppose a Greek domiciled in Greece dies intestate leaving movables in England. By the English conflict of laws rule, succession to his movables is governed by Greek domestic law as the law of his domicile. Suppose that by Greek domestic law the wife of an intestate is entitled to a share of his movables. Such a share is claimed by W on the ground that she was the wife of the intestate. Suppose that the marriage between the intestate and W was celebrated in England and, though perfectly valid by English domestic law (which is the applicable law under the English conflict rule), was formally void by Greek domestic law (which is applicable under the Greek conflict rule) because no Greek priest was present at the ceremony. Will W’s claim to a share in the intestate’s movables be determined by the English or the Greek conflict rule?

一住所在希腊的希腊公民未留遗嘱死亡，留下动产在英国，其“妻”到英国法院主张继承此项动产。该“妻”与死者在英国按英国法规定的民事方式而非希腊法所要求的宗教方式结婚。该“妻”是否有继承权？ 英国冲突法规定：动产继承依死者住所地法。婚姻方式依婚姻举行地法。 希腊冲突法规定：动产继承依死者的本国法。婚姻方式依当事人的本国法。 希腊继承法规定：死者的妻子有继承权。

1. Definition A case involving private international law may place a subsidiary issue, as well as a main question, before the court. Once the relevant choice of law rule has been applied and the law to govern the main issue thereby determined, a further choice of law rule may be required to answer the subsidiary question affecting the main issue.

2. Elements of An Incidental Question An incidental question properly so-called presumes the existence of three facts. First, the main question must, under the conflict rule of the forum, be governed by the law of some foreign state. (主要问题依法院地国的冲突规范必须以外国法作为准据法) Secondly, a subsidiary issue involving a foreign element must arise which is capable of arising in its own right and which has a conflict rule of its own available for its determination.(需要先行解决的问题具有相对独立性并且有自己的冲突规范可供援用) Thirdly, the forum’s conflict rule for the determination of the subsidiary question must lead to a different result from the corresponding conflict rule adopted by the state whose law governs the main question.(在确定先决问题的准据法时，法院地国的冲突规范与主要问题准据法所属国的冲突规范适用的结果不相同)

3. Attitudes to the Problem The attitudes to the problem of incidental question are usually divided into three categories: some support the conflict rule of the state whose law is chosen to govern the main issue to maintain international harmony, others support the conflict rule of the forum to give priority to internal harmony, and still others consider that the determination of the problem will depend on the nature of the individual case and the policy of the forum thereto. As such, the incidental question, though necessarily present in certain types of case, is seldom discussed by courts and barely found regulated in private international law codifications.

法释〔2012〕24号 最高人民法院关于适用《中华人民共和国涉外民事关系法律适用法》若干问题的解释（一） 第十二条 涉外民事争议的解决须以另一涉外民事关系的确认为前提时，人民法院应当根据该先决问题自身的性质确定其应当适用的法律。

Schwebel v Ungar The wife married her first husband in Hungary, where they were both domiciled, and this marriage was valid under all relevant systems of conflict of laws. Later the couple, who were both Jews, decided to emmigrate to Israel. While en route to Israel, they were divorced by a Jewish ghet in Italy. This divorce was not recognized by the law of Hungary where they were still domiciled at the time, nor by the law of Italy, but was recognized by the law of Israel. The parties then acquired a domicile of choice in Israel, where they were regarded as having the status of single persons. Some time later the wife came to Toronto and, while still domiciled in Israel, married her second husband. They lived together for a few years and a child was born. Later, however, differences arose between them and the husband brought proceedings for nullity on the ground that the marriage was bigamous. The Supreme Court of Canada, affirming the decision of the Ontario Court of Appeal, held that the marriage was valid. Which is the main question? Which is the incidental question?

美国人JACK于1998年来中国工作，与一中国女子李雪青相识并产生感情。2000年3月，两人未经登记而以宗教方式在中国结婚。2001年8月JACK不幸遭遇车祸死亡，其远在美国的父母赶来中国，后与李雪青在JACK的遗产继承问题上发生分歧。JACK的父母遂向中国法院提起诉讼，声称JACK与李雪青未经登记结婚，该婚姻是无效的，因而李雪青没有继承权，他们要求继承JACK遗留在中国的全部财产；李雪青认为，JACK来中国之前居住的美国某州是允许以宗教方式结婚的，因而他们的婚姻是有效的，她有权继承JACK的遗产。问： 1。该案是否存在先决问题？ 2。我国法院应如何处理该案？

Section 5 Evasion of Law 1. Definition Where a party is prevented by a rule of law from the realization of certain purpose, e.g. divorce, he or she will try to evade the rule. In a conflict of law situation, the party usually by artifice or subterfuge creates a connecting factor to attract or prevent the application of the rules of a particular system, as e.g., in the classical case of the the Princesse de Bauffremont that of a particular nationality through a naturalization ad hoc. 指涉外民商事关系的当事人为利用某一冲突规范，故意制造某种连结点，以避开本应适用的法律，从而使对自己有利的法律得以适用的一种逃法或脱法行为 。

the Princesse de Bauffremont The princess Bauffremont, originally a Belgian, got married with prince Bauffremont and thus got her French nationality. As she wanted to get a divorce and remarry a Romanian Prince, which was not permitted by the French law, she emigrated to Germany and was naturalized as a German. She then got a divorce decree in a German court and remarried the Romanian Prince. Prince Bauffremont sought a declaration in the French court to invalid the change of nationality of Princess Bauffremont and invalidate her divorce and remarriage. The French court upheld the petition of Prince Bauffremont and applied the doctrine of fraude à la loi to deprive the Princess’s naturalization of its effect.

鲍富莱蒙妃子案 该案原告鲍富莱蒙王子的妃子，原为比利时人，因与鲍富莱蒙结婚而取得法国国籍，后欲离婚与一罗马尼亚人结婚，但当时法国的法律不准离婚（一八八四年以前)，她便只身移居德国并归化为德国人，随即在德国获得离婚判决，然后在柏林与罗马尼亚的比贝斯哥王子结婚。鲍富莱蒙遂申请法院宣告其妻加入德国国籍及离婚、再婚均属无效。？？？ 法国最高法院认为，依照法国法，离婚虽然应适用当事人的本国法，但鲍富莱蒙妃子取得德国国籍的动机，显然是为了逃避法国法律禁止离婚的规定，因而构成了法律规避，判决她在德的离婚和再婚均属无效。 Back

Elements a.行为主体是当事人 ； b.是当事人主观 故意造成的； c.是当事人通过人为地制造或改变一个或几个连结点造成的； d.规避的对象是依冲突规范本应适用的强制性或禁止性的法律； e.结果将适用对该当事人有利的法律。

2. Attitudes Towards Evasion of Law The attitudes towards evasion of law can be classified into three kinds. The first kind is to make the evasion totally void, as in France, evasion of law has always been regarded as fraud which makes everything void. Art. 18 of Belgium Private International Law of 2004 codifies such rule, which provides, “for the determination of the applicable law in a matter where parties may not freely dispose of their rights, facts and acts committed with the sole purpose to evade the application of the law designated by the present statute are not taken into account.” The second kind is to void only those manipulation which evade the application of domestic mandatory rules. The third kind is to retain its validity.

Our newly enacted Law on the Law Applicable to Civil Relations Containing Foreign Element does not deal with this issue, nor any previous legislations, the only relevant rules are found in judicial interpretations of the People’s Supreme Court . 最高人民法院《关于贯彻执行[中华人民共和国民法通则]若干问题的意见（试行）》：“194．当事人规避我国强制性或者禁止性法律规范的行为，不发生适用外国法律的效力．”(“if the parties evade our mandatory or prohibitory rules, the relevant foreign law shall not be recognized” .) 最高人民法院关于适用《中华人民共和国涉外民事关系法律适用法》若干问题的解释（一）（法释〔2012〕24号） “第十一条 一方当事人故意制造涉外民事关系的连结点，规避中华人民共和国法律、行政法规的强制性规定的，人民法院应认定为不发生适用外国法律的效力。”

Section 6 Renvoi (反 致) Once it is decided that a court has jurisdiction, how the issue before it is to be characterized and what choice of law rules are applicable, it might be thought that the judge’s task was reached its conclusion. Nothing remains for him to do but apply the chosen law. If this is the forum law， there is no doubt that what he is required to do is to give effect to the internal law. If，however, the applicable law is that of a foreign country the situation may be more complex. The difficulty is to determine what is meant by the applicable “law”. If, for example, the English rule for the choice of law refers to the law of Utopia, what meaning must be attributed to “the law of Utopia”?

Forgo‘s case（1883） Forgo, an illegitimate Bavarian national, was born with a domicile in Bavaria, but lived most of his life in France without ever acquiring a 'domicil' under French law. He left movable property in France but no relatives except for some remote collateral relatives of his mother. Under French law, these relatives could not succeed him and the property, being ownerless, would go to the French state. Under Bavarian law they could succeed. The French courts would determine the question by applying Bavarian law but the state argued that the Bavarian courts would apply French law, and the French courts should do likewise. The Court of Cassation of France held in favour of the French state's arguments. The result was that the French Treasury got its hands on the property to the exclusion of the collateral relatives.

福尔果案 福尔果是1801年出生在巴伐利亚的非婚生子，五岁时随其母去法国，并在那里定居直至1869年死亡。他在法国留下一笔动产，但未立遗嘱。福尔果没有子女，母亲和妻子都已死亡，其母亲的旁系血亲要求继承。 法国冲突法：动产继承适用被继承人本国法； 法国民法：涉案财产为无人继承财产，应收归国库； 巴伐利亚冲突法：动产继承适用被继承人事实上的住所地法； 巴伐利亚民法：被继承人母亲的旁系血亲有继承权。 法国法院是如何判决的？[案由？冲突规范？准据法？]

1. Definition The problem of renvoi arises when one state’s rule on conflict of laws refers a case to the law of another state, and that second state’s conflict-of-law rule refers the case either back to the law of the first state (remission) or to a third state (transmission), the third state’s conflict-of-law rule may refer the case back to the law of the first state (indirect remission) or further refer the case to the law of a fourth state.

a. remission: when there are only two legal systems concerned, the reference is merely from country A to country B and back from B to A.[ 指对某一涉外民商事案件，法院依自己的冲突规范应适用外国法，而该外国法中的冲突规范却指定应适用法院地法，法院因此适用了法院地国的实体法。]（福尔果案） b. transmission: where the reference is from A to B , and from B to C.[指对某一涉外民商事案件，甲国法院依自己的冲突规范应适用乙国法，而乙国的冲突规范指定适用丙国法，甲国法院因此适用了丙国实体法。]（特鲁福特(Truffort)案） c. indirect remission: where the reference is from A to B, from B to C, and from C to A. [指对于某一涉外民商事案件，甲国法院依自己的冲突规范应适用乙国法，依乙国的冲突规范又应适用丙国法，而依丙国的冲突规范却应适用甲国法，甲国法院因此适用了自己的实体法。]例

d. Foreign court theory(外国法院说 ：英国的反致理论) This demands that an English judge, who is referred by his own law to the legal system of a foreign country, must apply whatever law a court in that foreign country would apply if it were hearing the case.

Re Truffort (1887) Truffort, a Swiss subject, died domiciled in France and left movables in England. Truffort made a will to dispose of his movables in England to his godson. His only son sued in an English court to succeed to the movables. According to English conflicts rule, succession to movables was governed by the law of the deceased’s domicile, that is, the French law. Under French conflicts rule, succession to movables was governed by the law of the deceased’s nationality, namely, Swiss law. The English court applied Swiss internal law, thereunder the legitimate son of the deceased was entitled to nine-tenths of the estate even though it had all been disposed of by will.

特鲁福特(Truffort)案[1887年英国法院] 特鲁福特是一瑞士公民，在法国有住所，在英国有动产，他有一独生子。特鲁福特死在法国，留下一项遗嘱，将在英国的全部财产交给其教子。其独生子在英国法院起诉，要求继承这笔遗产。 英国冲突法：动产继承适用被继承人住所地法； 法国冲突法：动产继承依被继承人本国法； 瑞士实体法：被继承人的子女应继承90％的遗产。 英国法院是如何判决的？返回

Suppose an Argentine died domiciled in England, left immovables in Japan. A succession case was brought before a Japanese court. According to the Japanese conflicts rule, succession to immovables was governed by the law of the deceased’s nationality, but under Argentine conflict-of-law rule, succession to immovables was governed by the law of the last domicile of the deceased, thus transmitted the case to English law, under English conflict-of-law rule, succession to immovables was governed by the lex situs of the immovables, thus the case was referred back to Japanese law. The Japanese court would apply Japanese law to the case.

一个阿根廷公民在英国有住所，死在英国，在日本留有不动产，现因此项不动产继承在日本法院涉讼。 日本冲突法：不动产继承依被继承人本国法； 阿根廷冲突法：不动产继承依被继承人最后住所地法； 英国冲突法：不动产继承依不动产所在地法。 日本法院适用了自己的实体法。返回

Mrs Annesley, an English testatrix had lived in France for fifty-six years. She died leaving a will of movable property. According to English law, her domicile at death was in France, but she had not acquired a domicile in France according to French law. Following the English conflicts rule, French law, as the law of her domicile at death, governed the validity of her will. By French law it was partly invalid because she was not free to dispose of all her property in the way she had done, since she had not provided for certain persons who were entitled by law to a share. By French conflicts rule also the validity of the will was governed by the law of Mrs Annesley's last domicile, but by French law she died domiciled in England, so English law would be applied by a French court. However, by means of renvoi, the French court would apply the English conflict rule which referred the case to French law, so that the French court would (as in Forgo's case) apply the French law of succession. The English court thus applied the French law of succession and held the will partly invalid.

An English testatrix died domiciled in Italy leaving movable property in England and Italy and immovable property in Italy. Succession to all her property was, therefore, governed by Italian law as the lex domicilii and the lex situs. The will was partly invalid by Italian law. But the Italian court would apply English law as her national law, but not apply renvoi. Therefore, Luxmoore J. applied English domestic law and held the will valid.

For the problem of renvoi to arise, three conditions must be met: first, the forum law refers the case to a foreign law; second, the reference to a foreign law includes its choice of law rules; third, the forum’s choice of law rule is different from the relevant foreign state’s choice of law rule due to the diversity of connecting factors or diverse interpretation of the same connecting factors.

反致的产生条件 a.本国冲突规范所指向的外国法是该外国的全部法律（包括实体法和冲突法）； b. 相关国家冲突法的冲突； c. 致送关系没有中断。 如，对于不动产的法定继承，甲国规定适用不动产所在地法，乙国规定适用被继承人的本国法，且都认为本国冲突法指定的对方法律包括冲突法。假如一个乙国公民死于甲国并在甲国留下不动产，如在甲国提起继承诉讼，并不发生指定乙国法的情况；如在乙国提起诉讼，也不发生指定甲国法的现象。反致问题不会发生。

2. Solutions to the Problem of Renvoi Three solutions have been used for this problem: The first is, never to accept any reference either back to one’s own system or forward to a third, and always to apply only the internal rule of the law referred to, irrespective of whether the courts of the country in which that law applies would themselves have done so.

Quebec Civil Code Art.3080: where, under the provision of this Book, the law of a foreign country applies, the law in question is the internal law of that country, but not its rules governng conflict of laws Chinese Law on the Law Applicable to Civil Relations Containing Foreign Element, Art. 9 : “the foreign law applicable to a civil relation containing foreign element shall not include its choice of law rules”. English Private International Law (Miscellaneous Provisions) Act, 1995, Art. 9 (5) : The applicable law to be used for determining the issues arising in a claim shall exclude any choice of law rules forming part of the law of the country or countries concerne”.

Hague conventions on the law Applicable to Traffic Accidents, 1971; on the Law Applicable to Products Liability, 1973; on the Law Applicable to Matrimonial Property Regimes, 1978, etc. , make clear that the applicable law is “the internal law” of the State designated; European Union’s legislations also exclude renvoi, Rome I : “The application of the law of any country specified by this Regulation means the application of the rules of law in force in that country other than its rules of private international law, unless provided otherwise in this Regulation.”(Art.20) Rome II : “The application of the law of any country specified by this Regulation means the application of the rules of law in force in that country other than its rules of private international law.”(Art. 24).

The second attitude was to accept the renvoi by the foreign law to the lex fori, and also to a third law. The German’s Introductory Act to the Civil Code Art. 4 :(1) If referral is made to the law of another country, the private international law of that country shall also be applied, insofar as this is not incompatible with the meaning of the referral. If the law of another country refers back to German law, the German substantive provisions shall apply. (2) Where the parties can choose the law of a certain country, that choice may only relate to the substantive provisions.”

A third approach to the problem: accept renvoi only exceptionally. Swiss PIL provides in Art. 14, “(1) If the applicable law refers back to Swiss law or onwards to another foreign law, that reference shall be observed only if this Code so provides. (2)In matters of civil status, reference back to Swiss law by a foreign law must be observed.” Only two other provisions expressly refer to foreign conflicts rules: Art. 37 (1) “the name of a person domiciled abroad shall be governed by the law designated by the private international law of the State of his domicile”; and Art. 91(2) “the estate of a person who had his last domicile abroad shall be governed by the law designated by the private international law rules of the State in which the decedent was domiciled” .

Belgian Code of Private International Law Art Belgian Code of Private International Law Art.16 provides, “within the meaning of the present statute and unless special provisions state otherwise, the reference to the law of a State is to the legal rules of that State with the exclusion of its rules of private international law”, and the only special provision to the effect of Art. 16 is Art. 34 which accepts reference back to Belgian law in the question of capacity: ”Except in matters where the present statute provides otherwise, the law of the State whose nationality that person has governs the status and capacity of a natural person. Belgian law governs the capacity if the foreign law leads to the application of Belgian law.”

瑞士：“应适用的法律反致瑞士法律或转致另一国家的法律时，只在本法有规定时，才考虑接受反致或转致。在民事身份问题上，外国法对瑞士法律的反致应予接受。” 德国：“1.如果一个国家的法律被援用，则该国国际私法也应被适用，除非这违背法律适用的意义。如果其他国家的法律反致德国法律，则适用德国的实体规范。2. 在当事人可以选择某国法律的情况下，他们所选择的只能是实体规范。” 英国：“用于决定诉讼中产生的问题的应适用的法律应不包括有关国家法律中的法律选择规则”。 中国:《涉外民事关系法律适用法》第九条　涉外民事关系适用的外国法律，不包括该国的法律适用法。

Section 7 Proof of Foreign Law [Pro. Dr.Rainer Hausmann, : Pleading and Proof of Foreign Law --- A Comparative Analysis] Whenever the rules of private international law refer to foreign law, the problems of proving foreign law arise because its content normally is unknown to the court: whether the judge has an obligation to apply such foreign law ex officio and by which means he may ascertain the content of the lex causae. Solutions to these questions largely depend on the attitudes towards the status of foreign law in domestic proceedings. 一国法院在审理涉外民商事案件时，如果依本国的冲突规范应适用某一外国实体法，谁来证明，如何证明该外国法的有关规定 ？

1. The Status of Foreign Law in Domestic Proceedings: Question of Fact or Question of Law?外国法：法律？事实？ In countries where foreign law is regarded as law, it has to be applied ex officio by the court and its proof is in principle also a matter for the court; in other countries where foreign law is regarded as fact, it is normally applied only if one of the parties so requests and the burden of proof rests on the party who pleads it; if it is not proven, the court will apply the lex fori.

The effects of a classification of foreign law as a question of fact or law, respectively, are threefolds: Firstly, it depends on this classification who has to introduce a certain matter to the proceedings. Facts have to be pleaded by the parties, while questions of law have to be considered by the court ex officio. Secondly, the distinction between questions of fact and questions of law is relevant for the decision whether a certain matter is subject to evidence. Whereas questions of law are governed by the principle iura novit curia ("the court knows the law"), questions of fact have to be proven by the parties. Thirdly, the distinction is important with regard to the judicial control of court decisions. The decision of a lower court may be overruled on appeal as far as questions of law are concerned, whereas the statements of fact made by the lower court normally are binding on the court of appeal. Foreign law confronts the judge with the dilemma, that on the one hand its normative character is obvious, while on the other hand its content is unknown to the judge. With regard to the status of foreign law in domestic proceedings, its pleading and proof, the approach of the main legal systems still is quite divided to date.

2. The Pleading and Proof of Foreign Law: the English Approach In an action before an English court, a party who relies on the rules of a foreign system of law must plead and prove them. Rules of foreign law have the status of facts, but they are unusual facts in that they need only be proved to the satisfaction of the judge, not that of the jury. A particular rule of foreign law need not be proved afresh each time it is pleaded according to the Civil Evidence Act 1972.

A foreign statute or law cannot be proved without expert witness, since they might require interpretation to enable the court to understand it correctly. The judge has certain discretion to reject the expert’s evidence and form its own conclusion. The Court of Appeal will usually not disturb the trial judge’s findings of fact, but where the fact is a rule of foreign law, it may interfere with the judge’s finding. If foreign law is not pleaded or pleaded without proving, the court will apply English law.

3. The Establishment of Foreign Law: German Approach In German Law, it is quite settled that the rules of private international law have to be applied as part of the German legal system by the judge ex officio. If a German conflict rule refers to foreign law, such law must be applied, therefore, whether or not it is pleaded by the parties. This solution is consistent with the German concept to treat foreign law as “law” The Court has the duty to ascertain the content of foreign law ex officio.In Germany, it is a generally accepted principle that the judge has to know the law, and if he has not a sufficient knowledge of the law, as is normally the case when he has to apply foreign law, he is under an obligation to investigate, interpret and apply such law on his own motion. The parties are entitled under German law to participate in the investigation and ascertainment of foreign law, their role is rather restricted. Expert opinions presented by them have only the quality of submissions by the parties. As foreign law is not a fact, but law, an expert on foreign law may never be a witness. And as the court has to ascertain foreign law ex officio, there is no burden on either party to prove the content of foreign law.

The German Approach to apply foreign law as law, and not as fact, and to impose on the judge the obligation to ascertain its content ex officio is being followed, in principle, also in Switzerland and Belgium. Article 16 (1) of the Swiss PIL provides as follows: “The content of the applicable foreign law shall be established ex officio. The assistance of the parties may be requested. In the case of pecuniary claims, the burden of proof on the content of the foreign law may be imposed on the parties. Swiss law shall apply if the content of the foreign law cannot be established. ” Art 15 of the the Belgian PIL provides likewise: “The judge establishes the content of the foreign law designated by the present statute. That law is applied in accordance with the interpretation given to it in the foreign country. The judge may require the cooperation of the parties if he cannot establish the content. When it is clear that the content of the foreign law cannot be established timely, Belgian law is applied.”

4. The Establishment of Foreign law in China Until the enactment of the New Applicable Law of China 2010, there is no provision of law relating to the establishment of foreign law, except a judicial interpretation of the Supreme People’s Court which provides for the channels to ascertain the foreign law. The Supreme People’s Court’s Opinion on Several Issues Relating to the Imprementation of the General Principles of the Civil Law of the People's Republic of China provides in Art.193: “The Applicable Foreign Law shall be ascertained through the following channels: (1) presented by the parties; (2)presented by the central organ of the country contracting a judicial assistance agreement with our country; (3) presented by our embassy or consulate in such foreign country; (4) presented by the embassy or consulate of such foreign country in our country; (5) presented by Chinese or foreign experts. The law of the People’s Republic of China shall apply if the content of the foreign law cannot be established through the aforesaid channels.” Though this did not make clear who is liable for the ascertainment of foreign law, it is generally understood that the judge is required to apply the channels to establish the content of foreign law, the parties are only one the body to present foreign law.

最高人民法院《关于贯彻执行〈民法通则〉若干问题的意见（试行）〉第193条： 对于应当适用的外国法律，可通过下列途径查明： (1)由当事人提供， (2)由与我国订立司法协助协定的缔约对方的中央机关提供， (3)由我国驻该国使领馆提供， (4)由该国驻我国使馆提供， (5)由中外法律专家提供。 通过以上途径仍不能查明的，适用中华人民共和国法律。

The New Applicable Law of China 2010 makes it clear now that it is the judge and other tribunals who is liable for the ascertainment of foreign law, the parties have the obligation to prove foreign law only in certain circumstances, that is, when they have the right and have actually choose foreign law as governing law. Art.10 provides as follows: “The foreign law applicable to a civil relation containing foreign element shall be ascertained by the People’s Court, the Arbitral Tribunal or the Administrative Agency. The party who choose the foreign law as governing law shall prove the contents of such law.” The article provides further, “If the contents of the foreign law can not be ascertained or there are no relevant rules in the law, the law of the People’s Republic of China shall apply.”

《涉外民事关系法律适用法》 第十条　涉外民事关系适用的外国法律，由人民法院、仲裁机构或者行政机关查明。当事人选择适用外国法律的，应当提供该国法律。 　　不能查明外国法律或者该国法律没有规定的，适用中华人民共和国法律。

Case Analysis 甘肃省公路局诉日本横滨橡胶株式会社产品责任侵权纠纷案 【（2002）西经二初字第074号 】

Section 8 Public Policy 案例 1. Introduction When the forum’s choice of law rule refers to a foreign law, the application of which would lead to an undesirable result offensive to the public policy of the forum, the court would refuse to apply such foreign law. 指一国法院依其冲突规范本应适用外国法时，因其适用会与法院地国的重大利益、基本政策、道德的基本观念或法律的基本原则相抵触而排除其适用的一种保留制度。

贺尔泽是一个具有犹太血统的德国人，1931年担任德国帝国铁路局的某公司总管。1933年帝国铁路总经理免去贺尔泽的职务，理由是德国当局关于非雅利安人的立法有必须解除犹太人职务的规定。就雇佣合同的有关履行问题，贺尔泽在美国纽约法院对德国帝国铁路局起诉（该局在纽约数家银行有存款账户）。 根据贺尔泽与帝国铁路局之间的合同是在德国订立且在德国履行这一事实，纽约法院依有关冲突规范应该适用德国法。审理本案的法官对此予以承认，但拒绝适用德国法。他指出：德国法有辱美国的独立，否定美国的宪法，违背美国的传统，讥讽美国的历史……对于在美国法院提起的本诉讼，就只能适用美国的有关法律。判决结果为原告胜诉。 back

公共秩序保留的实质与作用: 公共秩序保留的实质是国家在通过冲突规范调整涉外民商事关系的过程中用以维护其本国利益的一种重要工具；公共秩序保留有两个方面的作用：一是消极的否定作用，即否定依本国冲突规范指定应适用的外国法的适用；二是积极的肯定作用，即，使内国法的某些规定（涉及国家或社会的重大利益、道德与法律的基本原则的规定）得到直接适用。

2.Legislations Relating to Public Policy公共秩序保留的立法 瑞士：“ 如果适用外国法律规定的结果与瑞士公共政策不相容，则应排除其适用。” 德国：“其他国家的某一法律规范，如果其适用会导致一种与德国法律的基本原则明显不一致的结果，则不予适用。尤其是当其适用与基本权利相违背时，不得适用该法律。” 《民法通则》150条： 依照本章规定适用外国法律或者国际惯例的，不得违背中华人民共和国的社会公共利益。 《涉外民事关系法律适用法》第5条　外国法律的适用将损害中华人民共和国社会公共利益的，适用中华人民共和国法律。 《产品责任法律适用公约》：“依本公约主张可以适用的法律只有在其适用会明显地与公共政策相抵触时才可拒绝适用。” 《公路交通事故法律适用公约》……

Swiss PIL Art. 17 V. Public policy (ordre public) The application of provisions of foreign law shall be precluded if it would produce a result which is incompatible with Swiss public policy (ordre public). German PIL (the Introductory Act to the Civil Code of Germany) Art. 6A provision of the law of another country shall not be applied where its application would lead to a result which is manifestly incompatible with the fundamental principles of German law. In particular, inapplicability ensues, if its application would be incompatible with civil rights.

General Principles of the Civil Law of the People's Republic of China Article 150 The application of a foreign law or international custom pursuant to the provisions of this Chapter shall not jeopardize the public interest of the People's Republic of China. Law of the People’s Republic of China on the Law Applicable to Civil Relations Containing Foreign Element Article 5 If the application of foreign law shall cause damage to the public interest of the People’s Republic of China, the law of the People’s Republic of China shall apply.

CONVENTION ON THE LAW APPLICABLE TO PRODUCTS LIABILITY Article 10 The application of a law declared applicable under this Convention may be refused only where such application would be manifestly incompatible with public policy ("ordre public"). CONVENTION ON THE LAW APPLICABLE TO TRAFFIC ACCIDENTS Article 10 The application of any of the laws declared applicable by the present Convention may be refused only when it is manifestly contrary to public policy ("ordre public")

海南省木材公司同新加坡达斌私人有限公司签订了购买坤甸木的合同，合同规定采用跟单信用证方式付款。后来，达斌私人有限公司利用泰坦船务公司签发的提单及其他单证到新加坡结汇银行结汇。结汇银行要求开证行中国银行海口分行支付货款183万元。海口分行经审查，全部单证符合信用证要求，于是通知海南省木材公司付款赎单。而海南省木材公司通过调查了解到，卖方根本没有装货上船，所提供的提单及其他单证全系伪造。于是拒不付款赎单，同时向广州海事法院起诉，申请冻结信用证项下货款。广州海事法院通过审理，最后援用我国《民法通则》关于公共秩序保留的规定排除了有关跟单信用证国际惯例的适用，并依照我国民事诉讼法有关规定冻结了该信用证项下的货款。 请就本案的审理谈谈你的看法。

思考题 1．名词概念：识别；先决问题；法律规避；反致；外国法查明；公共秩序保留。 2．应该怎样认识和对待国际私法上的识别、先决问题、法律规避、反致、外国法查明、公共秩序保留等制度？它们对冲突规范的法律效力有何影响？我国立法如何规定或应如何规定？

3．案件分析 （1）浙江某农场从日本某公司进口农药，合同约定因该合同引起的一切纠纷按照日本的法律在日本仲裁。农场使用该批农药后，致使农作物全部死亡。双方因此发生纠纷。请问如何利用“识别”制度提出对农场有利的抗辩或主张？ （2） 国内某地法院在承认和执行某一外国法院作出的判决时，认为执行该判决将导致当地一大型国有企业破产和大量工人失业，于是根据“公共秩序保留”制度拒绝执行该判决。试根据“公共秩序保留”制度的相关理论对该法院的做法加以评析。