识别的对象与识别理论的展开
宋晓识别的对象与识别理论的展开
Characterization: What is Characterized and the Main Theories
期刊名称：《法学研究》
期刊年份：
作者：宋晓
单位：南京大学法学院
中文关键词：识别;法院地法说;准据法说;新法院地法说
英文关键词：characterization;the lex fori theory;the lex causae theory;the new lex fori theory
中文摘要：
国际私法的识别问题是独特的法律问题，只与法律适用有关，而和管辖权无直接关联。理论纷乱的源头很大程度上源于对识别对象的认识不清。识别的对象是法律规则，识别的中心问题是识别外国法规则和解决识别冲突。识别过程反映了实体规则与冲突规则的对向交流关系，法院地法说和准据法说各执一端。新法院地法说灵活游动于两端之间，透显了识别问题的本质和实践要求。识别问题只宜强化理论指南，而不宜通过立法解决。
英文摘要：
As a special legal problem, characterization in private international law is deeply embedded in Savigney’s theory, harassing scholars of several generations in this field. Actually, characterization focuses on the interpretation of operative facts which are part of a conflict rule, so it relates only to the process of choice-of-law, and has nothing to do with the civil judicial jurisdiction. Among fact, cause of action, legal relationship and legal rule, which is the object of characterization? To a great extent, the confusion girding this issue gives rise to all the controversies around characterization. The answer should be the substantive legal rules (mainly the foreign substantive rules), based on which the parties state their facts and assert their rights. In fact, characterization reflects a mutual communication between legal rules (especially the foreign rules) and forum’s conflicts rules. Consequently, the key issues of characterization are to classify foreign legal rules and to resolve the conflicts of characterization.When the object of characterization is accepted as legal rules, various theories or approaches on characterization, their strongpoint and weakness as well, will be easily understood. “The lex fori doctrine” prefers the conflict rules, while “the lex cause doctrine” prefers the substantive legal rules, both of which stand at the opposite ends of the spectrum, reflecting one side of the same coin and neglecting the other. However, two other approaches, that is, “the comparative law and analytical law doctrine” and “the new lex fori doctrine”, attempt to surpass the mentioned two theories by trying to take both ends of the spectrum into consideration. Comparatively, “the new lex fori doctrine” deeply touches the nature of characterization, while “the comparative law and analytical law doctrine” is too Utopian to be practical.In conclusion, the way to characterization remains to be a flexible and unsettled process, like swing of the pendulum, oscillating between the two extremes of the conflict rules and the substantive rules, and finally stopping at a certain point based on specific cases. The issue of characterization, naturally, should be resolved by providing the judges with guidance from theories, principles and approaches, rather than enacting legislative rules by parliament.
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