论文部分内容阅读
国际私法中的法律规避,即法律欺诈,是指涉外法律关系的当事人为了实现自身利益而制造或者改变某种连接点,规避对自己不利的法律,使于己有利的法律得以适用的行为。随着经济的发展和国门的开放,中外交流变得异常频繁,这在增进人们之间了解的同时,摩擦冲突也逐步凸显出来。因为每个国家都有自身不同的特点,有着不同的文化信仰和法律制度,不同的法律在同一事件或行为上的不同规定,会使人们在适用法律是无所适从,也给人们选择适用的法提供了空间。当冲突发生时,面对国内外法的不同规定,当事人必定选择于己有利的外国法律,这种选择就会促使人们趋利避害,人为地制造因素,规避不利,适用有利的法律规定,法律规避问题由此产生。对法律规避问题的研究,不仅具有理论上的指导意义,实践中更具有现实意义,本文分为两大部分,第一部分是对法律规避问题的概述,在这部分,主要介绍法律规避的起源和发展、产生原因、构成要件等基本内容,对法律规避有一个整体认识;第二部分,相关问题介绍,主要是阐释和公共秩序保留的关系、法律规避的对象等有争议的问题。
Legal avoidance in private international law, that is, legal fraud, refers to the act of making or changing some kind of connecting point for the parties concerned in foreign-related legal relations in order to realize their own interests, circumventing the laws that are unfavorable to themselves and making the law that is already beneficial to them apply. With the development of economy and the opening of the country, the exchange between China and foreign countries has become more and more frequent. This not only enhances the mutual understanding between people, but also gradually highlights the friction conflicts. Because each country has its own different characteristics, has a different cultural beliefs and legal systems, different laws in the same event or behavior of different provisions, will make people know what to do in the application of law, but also to give people the choice of the law to provide Space. When the conflict occurs, facing the different provisions of the domestic and foreign laws, the parties must choose their own favorable foreign law. Such a choice will prompt people to profit and avoid disadvantages, create factors artificially, avoid disadvantages and apply favorable legal provisions, The problem of legal avoidance arises from this. The research on legal avoidance not only has the theoretical guiding significance but also has more practical significance in practice. This article is divided into two parts. The first part is an overview of the legal avoidance. In this part, the author mainly introduces the origin of legal avoidance and The second part is the introduction of related issues, mainly to explain the controversial issues such as the relationship with the preservation of public order and the object of legal avoidance.