论文部分内容阅读
异地侵权责任的准据法确定必须重视对受害人权益的保护,但如何实现历来是一个难题。对此,我国刚刚生效的涉外民事关系法律适用法无论是一般规定还是侵权行为的相关规定都未作任何规定。因此显然有必要对新法的相关规定予以修订。而各国的确定异地侵权行为准据法的立法例大致可分为侵权行为实施地、侵害结果发生地及偏在理论等三种方式。由于过度强调加害人的利益,第一种方式不宜采用。而由于兼顾对受害人权益和当事人双方预见可能性的保护,侵害结果发生地的方式显然更为合理。因此,在很难大幅扩充特殊侵权责任单独规定的情况下,法律适用法第44条前半部分宜转采以侵害结果发生地为系属的准据法确定方式。
According to the applicable law of tort liability in different places, we must attach importance to the protection of the rights and interests of victims, but how to achieve it has always been a difficult problem. In this regard, China has just entered into force on the law applicable to foreign relations of civil law, whether it is a general requirement or the relevant provisions of the infringement have not made any provision. It is therefore obviously necessary to amend the relevant provisions of the new law. However, the legislation of each country that determines the law applicable to infringements of other places can be roughly divided into three ways: the place where the infringement is committed, the place where the infringement occurs and the partial theory. Due to over-emphasis on the interests of the perpetrators, the first way should not be used. However, it is obviously more reasonable to infringe upon the place where the outcome occurred because of the protection of both the victims ’rights and interests and the possibility of the parties’ anticipation. Therefore, under the circumstances that it is hard to greatly expand the separate stipulation of special tort liability, the first half of Article 44 of the law applicable law should be transferred according to the law applicable to the infringement of the result.