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冲突法上的例外条款是双边冲突规范的适当灵活化,以实现冲突法正义作为其价值目标。例外条款应作狭义界定,专以法律选择领域为限。例外条款是冲突规范的完善或延伸,与冲突规范具有同质性。例外条款以存在应当严格适用的冲突规范为前提,具有适用的从属性。例外条款的适用受到多重限制,以确保其“例外”地存在。法官的自由裁量限于双边冲突法框架,判断能否构成例外的因素局限于冲突正义领域,而不应该受到实体结果的影响。例外条款应尽量避免与已有的排除冲突规范指引的制度发生概念的混淆和功能的重合。
The exception clause in the law of conflict is the proper flexibility of the norms of bilateral conflicts, with the goal of achieving justice in conflict of law as its value. Exceptions should be narrowly defined and specifically limited to the area of legal choice. The exception clause is a refinement or extension of the conflict norms and is homogeneous with the conflict norms. Exceptions have the appropriate dependencies on the premise that conflicting norms should be strictly applied. The application of exceptions is subject to multiple restrictions to ensure that their “exceptions” exist. Judges’ discretion is limited to the framework of the Bilateral Conflict Law, and the factors that determine whether an exception can be made are confined to the field of conflict justice, rather than influenced by the results of the entity. Exceptions should be avoided as much as possible from confusion and overlapping of functions with the existing system of guidelines for the exclusion of conflicts.