論意思自治原則在涉外婚姻家庭關(guān)系中的適用
發(fā)布時(shí)間：2018-07-25 16:38
【摘要】：意思自治原則最早由誰(shuí)提出在學(xué)界并無(wú)定論,但該原則自16世紀(jì)由法國(guó)學(xué)者杜摩蘭提出來(lái)之后方引起國(guó)際社會(huì)的廣泛關(guān)注并引發(fā)激烈的爭(zhēng)論則是不爭(zhēng)的事實(shí)。該原則原本主要適用于涉外合同關(guān)系,即涉外合同關(guān)系的當(dāng)事人可以共同協(xié)議選擇適用于涉外合同關(guān)系的法律。由于該原則符合資本主義自由貿(mào)易的需要以及近現(xiàn)代契約自由和人權(quán)理論的興起,意思自治原則的適用范圍遠(yuǎn)遠(yuǎn)超出了涉外合同關(guān)系領(lǐng)域,正在不斷地向諸如涉外侵權(quán)行為領(lǐng)域、涉外信托關(guān)系領(lǐng)域、涉外婚姻家庭關(guān)系領(lǐng)域,乃至涉外動(dòng)產(chǎn)物權(quán)關(guān)系等領(lǐng)域快速地拓展。我國(guó)《涉外民事關(guān)系法律適用法》認(rèn)真審視了該原則的適用范圍快速拓展這一客觀現(xiàn)實(shí),于該法中不僅將意思自治原則作為一般法律適用條款予以規(guī)定,而且在規(guī)定具體的涉外民事關(guān)系之法律適用中涉及14種涉外民事關(guān)系可以適用意思自治原則。就涉外婚姻家庭關(guān)系而言,該法明確規(guī)定涉外協(xié)議離婚、涉外夫妻財(cái)產(chǎn)關(guān)系可以適用意思自治原則,而對(duì)于涉外結(jié)婚的形式要件、涉外扶養(yǎng)關(guān)系、涉外夫妻人身關(guān)系等領(lǐng)域并未明確規(guī)定可以適用意思自治原則。從國(guó)際社會(huì)新近的國(guó)際私法立法與實(shí)踐來(lái)看,諸多國(guó)家將意思自治原則適用于上述涉外婚姻家庭關(guān)系�；诖�,本人以“論意思自治原則在涉外婚姻家庭關(guān)系中的適用”為選題,首先闡述意思自治原則適用于涉外婚姻家庭關(guān)系的理論依據(jù),繼而闡釋意思自治原則適用于涉外婚姻家庭關(guān)系的范圍,然后重點(diǎn)研討了我國(guó)關(guān)于意思自治原則適用于涉外婚姻家庭關(guān)系的立法特點(diǎn)和主要缺憾,并就如何完善我國(guó)關(guān)于意思自治原則適用涉外婚姻家庭關(guān)系的立法與實(shí)踐提出了一些具體建議,企盼能對(duì)我國(guó)相關(guān)國(guó)際私法立法的完善,從而及時(shí)、妥善地處理涉外婚姻家庭關(guān)系方面的爭(zhēng)議有所裨益。全文除導(dǎo)論和結(jié)語(yǔ)外,主要包括以下幾個(gè)部分:第一部分,闡釋意思自治原則適用于涉外婚姻家庭關(guān)系的理論依據(jù)。在涉外婚姻家庭關(guān)系法律適用中引入意思自治原則的理論依據(jù)主要包括:婚姻契約自由理論,該理論認(rèn)為,涉外婚姻關(guān)系在本質(zhì)上仍屬于涉外契約關(guān)系,既然婚姻關(guān)系當(dāng)事人可以依據(jù)雙方的意思表示締結(jié)婚姻家庭關(guān)系契約,完全也可以依據(jù)雙方當(dāng)事人的意思表示共同協(xié)議選擇涉外婚姻家庭關(guān)系的法律適用;私權(quán)自治理論,該理論認(rèn)為,婚姻家庭關(guān)系是典型的民商事關(guān)系,按照西方法學(xué)對(duì)法律的分類標(biāo)準(zhǔn),調(diào)整民商事關(guān)系的法律應(yīng)屬于私法,而私法領(lǐng)域通常國(guó)家公權(quán)不應(yīng)介入其中,即私權(quán)自治,故涉外婚姻家庭關(guān)系理應(yīng)可以適用當(dāng)事人意思自治原則�，F(xiàn)代人權(quán)理論認(rèn)為,應(yīng)當(dāng)以人為本位,尊重人的自由和平等權(quán)利,尊重人的意思自治,故,以自然人為主體的婚姻家庭關(guān)系理應(yīng)適用意思自治原則。第二部分,闡述意思自治原則適用于涉外婚姻家庭關(guān)系的范圍。盡管各國(guó)的相關(guān)國(guó)際私法立法與實(shí)踐不盡相同,但意思自治原則主要適用于涉外婚姻家庭關(guān)系的如下方面:涉外結(jié)婚的形式要件;涉外夫妻關(guān)系,它包括涉外夫妻人身關(guān)系和涉外夫妻財(cái)產(chǎn)關(guān)系;涉外離婚關(guān)系和涉外扶養(yǎng)關(guān)系等。第三部分,研討我國(guó)關(guān)于意思自治原則適用于涉外婚姻家庭關(guān)系的立法特點(diǎn)和主要缺憾。迄今為止,我國(guó)關(guān)于意思自治原則適用于涉外婚姻家庭關(guān)系的立法主要見(jiàn)之于《民法通則》、《涉外民事關(guān)系法律適用法》等民事立法之中。這些法律僅僅規(guī)定意思自治原則適用于涉外夫妻財(cái)產(chǎn)關(guān)系和涉外協(xié)議離婚關(guān)系等,而對(duì)于意思自治原則是否可以適用于涉外結(jié)婚的形式要件、涉外夫妻人身關(guān)系和涉外扶養(yǎng)關(guān)系并無(wú)明確的法律規(guī)定,且對(duì)意思自治原則適用于上述涉外婚姻家庭關(guān)系并無(wú)明確的限制。第四部分,論述我國(guó)關(guān)于意思自治原則適用于涉外婚姻家庭關(guān)系的立法完善�；谏鲜鲅杏懞蛧�(guó)際社會(huì)新近的相關(guān)國(guó)際私法立法與實(shí)踐,筆者認(rèn)為,我國(guó)在將來(lái)修訂相關(guān)國(guó)際私法立法時(shí),應(yīng)當(dāng)將意思自治原則擴(kuò)展適用于如下領(lǐng)域:涉外結(jié)婚的形式要件;涉外夫妻人身關(guān)系;涉外扶養(yǎng)關(guān)系、涉外離婚關(guān)系等領(lǐng)域,同時(shí)應(yīng)當(dāng)對(duì)意思自治原則適用于上述領(lǐng)域做出明確的、必要的限制,從而為妥善處理涉外婚姻家庭關(guān)系方面的爭(zhēng)議提供更為科學(xué)的法律依據(jù)。
[Abstract]:The principle of autonomy was first proposed in the academic world, but it was an indisputable fact that the principle was brought out by the French scholar Du Molan in sixteenth Century and caused a fierce debate. The principle was originally applied to foreign contractual relations, that is, the parties involved in foreign contractual relations can jointly cooperate. Because the principle conforms to the needs of the free trade of capitalism and the rise of the modern freedom of contract and the theory of human rights, the scope of the principle of autonomy of autonomy is far beyond the field of foreign contractual relations, and is constantly moving to the field of foreign torts, such as the foreign-related field of trust, and the field of trust relations, The field of foreign marriage and family relations, and even the relation of real right of foreign movable property has been expanded rapidly. China's law applicable to the law of civil relations concerning foreign affairs has carefully examined the objective reality of the application of this principle. In this law, it not only stipulates the principle of autonomy as the applicable clause of general law, but also stipulates that the principle is applicable. In the legal application of the foreign-related civil relations, 14 kinds of foreign-related civil relations can be applied to the principle of autonomy of the meaning. In terms of marriage and family relations involved in foreign affairs, the law clearly stipulates the divorce in the foreign-related agreement, the property relationship of the husband and wife involved in foreign affairs may apply the principle of autonomy of autonomy, and the form elements of the foreign marriage, the relationship of foreign support and the husband and wife involved in foreign affairs. On the basis of the new international private law legislation and practice, many countries apply the principle of autonomy to the above-mentioned foreign marriage and family relations. Based on this, I choose the topic of "the application of the principle of autonomy in the relationship of marriage and family in foreign affairs", first of all, This paper expounds the theoretical basis of the principle of autonomy for the application of the principle of autonomy to the relationship between foreign marriage and family, then explains the scope of the application of the principle of autonomy to the relationship between foreign marriage and family, and then focuses on the legislative characteristics and shortcomings of our country on the application of the principle of autonomy to the relationship between foreign marriage and family, and how to perfect our country's meaning. The principle of autonomy applies to the legislation and practice of the relationship between foreign marriage and family and puts forward some specific suggestions. It is expected to be beneficial to the improvement of relevant international private law legislation in China, so as to timely and properly deal with disputes concerning foreign marriage and family relations. The full text includes the following parts except introduction and conclusion: the first part, interpretation The theoretical basis for the application of the principle of autonomy to the relationship between marriage and family involved in foreign affairs. The theoretical basis for introducing the principle of autonomy in the legal application of marriage and family relations involved in foreign affairs mainly includes the theory of freedom of marriage contract. The theory holds that the relationship of marriage in foreign affairs is still in essence the contractual relationship of foreign affairs, since the parties to the marriage may be based on the basis of the theory. The meaning of the two parties means to conclude the contract of marriage and family relations, and it can also be used to choose the legal application of the relationship of foreign marriage and family according to the mutual agreement of the parties, and the theory of autonomy of private rights. The theory holds that the relationship between marriage and family is a typical civil and commercial relationship, and the civil and commercial standards are adjusted according to the classification standard of law to the law in the western jurisprudence. The law of the relationship should belong to the private law, and the private law field usually should not intervene in it, that is, private autonomy, so the relationship between the marriage and family should be applicable to the principle of party autonomy. Modern human rights theory holds that it should be people-oriented, respect human freedom and equal rights, and respect human autonomy, so the natural person is a natural person. The principle of autonomy of meaning should be applied to the relationship of marriage and family for the main body. The second part is to elaborate the scope of the principle of autonomy for the application of the principle of autonomy to the relationship between marriage and family involved in foreign affairs. Although the legislation and practice of relevant international private law in various countries are different, the principle of autonomy mainly applies to the following aspects of the relationship of foreign marriage and family: the form of marriage involving foreign affairs. The third part of the relationship between husband and wife involved in foreign affairs, including the relationship between husband and wife and husband and wife, property relations of foreign husband and wife, the relationship of foreign divorce and the relationship between foreign support and so on. The paper discusses the legislative characteristics and main shortcomings of the principle of meaning autonomy applicable to the relationship of foreign marriage and family. The legislation of external marriage and family relations is mainly seen in the general principles of the civil law, the law applicable to the civil relations of foreign affairs, and other civil legislation. These laws only stipulate that the principle of autonomy of autonomy applies to the relationship between husband and wife in foreign affairs and the divorce relation of foreign-related agreements, and whether the principle of autonomy can be applied to the form elements of foreign marriage. There is no clear legal provision for the relationship between man and wife involved in foreign affairs and the relation of foreign-related foster care, and there is no definite restriction on the application of the principle of autonomy of autonomy to the relationship between the above-mentioned foreign marriage and family. The fourth part discusses the legislative perfection of the application of the principle of autonomy of autonomy to the relationship between foreign marriage and family. In the relevant international private law legislation and practice, the author believes that when China revises the relevant international private law legislation in the future, the principle of autonomy should be extended to the following fields: the form elements of marriage involving foreign affairs, the relationship between husband and wife involved in foreign affairs, the relation of foreign-related foster care, the relation of foreign divorce and so on, and the principle of autonomy should be applied to the above principles. We should make clear and necessary restrictions in the field so as to provide a more scientific legal basis for properly handling disputes over marriage and family relations in foreign countries.
【學(xué)位授予單位】：華中師范大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2017
【分類號(hào)】：D997
本文編號(hào)：2144417
[Abstract]:The principle of autonomy was first proposed in the academic world, but it was an indisputable fact that the principle was brought out by the French scholar Du Molan in sixteenth Century and caused a fierce debate. The principle was originally applied to foreign contractual relations, that is, the parties involved in foreign contractual relations can jointly cooperate. Because the principle conforms to the needs of the free trade of capitalism and the rise of the modern freedom of contract and the theory of human rights, the scope of the principle of autonomy of autonomy is far beyond the field of foreign contractual relations, and is constantly moving to the field of foreign torts, such as the foreign-related field of trust, and the field of trust relations, The field of foreign marriage and family relations, and even the relation of real right of foreign movable property has been expanded rapidly. China's law applicable to the law of civil relations concerning foreign affairs has carefully examined the objective reality of the application of this principle. In this law, it not only stipulates the principle of autonomy as the applicable clause of general law, but also stipulates that the principle is applicable. In the legal application of the foreign-related civil relations, 14 kinds of foreign-related civil relations can be applied to the principle of autonomy of the meaning. In terms of marriage and family relations involved in foreign affairs, the law clearly stipulates the divorce in the foreign-related agreement, the property relationship of the husband and wife involved in foreign affairs may apply the principle of autonomy of autonomy, and the form elements of the foreign marriage, the relationship of foreign support and the husband and wife involved in foreign affairs. On the basis of the new international private law legislation and practice, many countries apply the principle of autonomy to the above-mentioned foreign marriage and family relations. Based on this, I choose the topic of "the application of the principle of autonomy in the relationship of marriage and family in foreign affairs", first of all, This paper expounds the theoretical basis of the principle of autonomy for the application of the principle of autonomy to the relationship between foreign marriage and family, then explains the scope of the application of the principle of autonomy to the relationship between foreign marriage and family, and then focuses on the legislative characteristics and shortcomings of our country on the application of the principle of autonomy to the relationship between foreign marriage and family, and how to perfect our country's meaning. The principle of autonomy applies to the legislation and practice of the relationship between foreign marriage and family and puts forward some specific suggestions. It is expected to be beneficial to the improvement of relevant international private law legislation in China, so as to timely and properly deal with disputes concerning foreign marriage and family relations. The full text includes the following parts except introduction and conclusion: the first part, interpretation The theoretical basis for the application of the principle of autonomy to the relationship between marriage and family involved in foreign affairs. The theoretical basis for introducing the principle of autonomy in the legal application of marriage and family relations involved in foreign affairs mainly includes the theory of freedom of marriage contract. The theory holds that the relationship of marriage in foreign affairs is still in essence the contractual relationship of foreign affairs, since the parties to the marriage may be based on the basis of the theory. The meaning of the two parties means to conclude the contract of marriage and family relations, and it can also be used to choose the legal application of the relationship of foreign marriage and family according to the mutual agreement of the parties, and the theory of autonomy of private rights. The theory holds that the relationship between marriage and family is a typical civil and commercial relationship, and the civil and commercial standards are adjusted according to the classification standard of law to the law in the western jurisprudence. The law of the relationship should belong to the private law, and the private law field usually should not intervene in it, that is, private autonomy, so the relationship between the marriage and family should be applicable to the principle of party autonomy. Modern human rights theory holds that it should be people-oriented, respect human freedom and equal rights, and respect human autonomy, so the natural person is a natural person. The principle of autonomy of meaning should be applied to the relationship of marriage and family for the main body. The second part is to elaborate the scope of the principle of autonomy for the application of the principle of autonomy to the relationship between marriage and family involved in foreign affairs. Although the legislation and practice of relevant international private law in various countries are different, the principle of autonomy mainly applies to the following aspects of the relationship of foreign marriage and family: the form of marriage involving foreign affairs. The third part of the relationship between husband and wife involved in foreign affairs, including the relationship between husband and wife and husband and wife, property relations of foreign husband and wife, the relationship of foreign divorce and the relationship between foreign support and so on. The paper discusses the legislative characteristics and main shortcomings of the principle of meaning autonomy applicable to the relationship of foreign marriage and family. The legislation of external marriage and family relations is mainly seen in the general principles of the civil law, the law applicable to the civil relations of foreign affairs, and other civil legislation. These laws only stipulate that the principle of autonomy of autonomy applies to the relationship between husband and wife in foreign affairs and the divorce relation of foreign-related agreements, and whether the principle of autonomy can be applied to the form elements of foreign marriage. There is no clear legal provision for the relationship between man and wife involved in foreign affairs and the relation of foreign-related foster care, and there is no definite restriction on the application of the principle of autonomy of autonomy to the relationship between the above-mentioned foreign marriage and family. The fourth part discusses the legislative perfection of the application of the principle of autonomy of autonomy to the relationship between foreign marriage and family. In the relevant international private law legislation and practice, the author believes that when China revises the relevant international private law legislation in the future, the principle of autonomy should be extended to the following fields: the form elements of marriage involving foreign affairs, the relationship between husband and wife involved in foreign affairs, the relation of foreign-related foster care, the relation of foreign divorce and so on, and the principle of autonomy should be applied to the above principles. We should make clear and necessary restrictions in the field so as to provide a more scientific legal basis for properly handling disputes over marriage and family relations in foreign countries.
【學(xué)位授予單位】：華中師范大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2017
【分類號(hào)】：D997
【參考文獻(xiàn)】
相關(guān)期刊論文 前10條
1 熊黎;;當(dāng)事人意思自治在涉外婚姻家庭領(lǐng)域的適用問(wèn)題探討[J];湖北經(jīng)濟(jì)學(xué)院學(xué)報(bào)(人文社會(huì)科學(xué)版);2015年09期
2 劉亞楠;;涉外婚姻家庭關(guān)系問(wèn)題的法律適用規(guī)則——《法律適用法》與《民法通則》的比較研究[J];唐山師范學(xué)院學(xué)報(bào);2012年04期
3 許軍珂;;論當(dāng)事人意思自治原則在《涉外民事關(guān)系法律適用法》中的地位[J];法學(xué)評(píng)論;2012年04期
4 唐瓊瓊;;論當(dāng)事人意思自治原則在《涉外民事關(guān)系法律適用法》中的適用問(wèn)題[J];成都行政學(xué)院學(xué)報(bào);2012年03期
5 曹玉婷;;涉外婚姻家庭關(guān)系法律適用法的人本化[J];山西省政法管理干部學(xué)院學(xué)報(bào);2012年02期
6 張玲;;我國(guó)婚姻家庭沖突法立法的新發(fā)展[J];湖南大學(xué)學(xué)報(bào)(社會(huì)科學(xué)版);2012年03期
7 王勝明;;涉外民事關(guān)系法律適用法若干爭(zhēng)議問(wèn)題[J];法學(xué)研究;2012年02期
8 陳衛(wèi)佐;;涉外民事關(guān)系法律適用法的中國(guó)特色[J];法律適用;2011年11期
9 郭玉軍;;涉外民事關(guān)系法律適用法中的婚姻家庭法律選擇規(guī)則[J];政法論壇;2011年03期
10 黃進(jìn);;中國(guó)涉外民事關(guān)系法律適用法的制定與完善[J];政法論壇;2011年03期
相關(guān)碩士學(xué)位論文 前1條
1 廖波;國(guó)際私法上意思自治原則的理論與實(shí)際研究[D];南昌大學(xué);2011年
，本文編號(hào)：2144417
本文鏈接：http://www.sikaile.net/shoufeilunwen/shuoshibiyelunwen/2144417.html
最近更新
教材專著
