法律适用中的时间要素 中日东海争端关键日期和时际法问题考察
张新军法律适用中的时间要素 中日东海争端关键日期和时际法问题考察
Time Factorin the Sino-Japanese Dispute over East China Sea: the Critical Date and Inter-temporal Law
期刊名称：《法学研究》
期刊年份：
作者：张新军
单位：华大学法学院
中文关键词：中日东海争端;大陆架制度;海洋法公约;时际法;关键日期
英文关键词：Sino-Japanese dispute over East China Sea;continental shelf;inter-temporal law;critical date
中文摘要：
中日东海争端中真正的法律问题指向的是大陆架权利制度。这一制度在过去大半个世纪中发生了很大变化，在法律适用时必须考虑时间要素。时间要素中的关键日期、時际法和现行法分别解决的是何时为止的法律关系需要判断、法律关系建构及形成于前法和后法的整个过程时适用哪一个法律，以及法律关系仅形成于后法之后时适用哪一个法律这三个问题，其中关键日期和時际法是中日东海争端的焦点。考虑这两点后的适用法律仍然是1969年北海大陆架案所确定的自然延伸原则。
英文摘要：
In the instant case between China and Japan in the East China Sea, right or title to continental shelf is the central issue of dispute. The law on continental shelf has evolved, from the natural prolongation principle confirmed in North Sea Continental Shelf Case in 1969, to a rule more favorably considering “distance criterion”. Therefore, it is necessary to take the time factor into account. Time factor can be approached from three perspectives, that is, critical date, inter-temporal law and contemporary law. Critical date is the date when the dispute was given rise to with a concrete issue. Inter-temporal law should be considered when legal relationship had been constructed before the change of the law, and contemporary law applies only when legal relationship was constructed after the change of the law. The mere fact that Sino-Japanese dispute over East China Sea has long before emerged indicates that the time factor in the dispute is not simply a contemporary law question as Japan asserts. The critical date in this dispute can be dated back to 1974 when China protested the Japanese-South Korean continental shelf agreement. If so, the changes in the law and fact after 1974 would be excluded and the applicable law should be the principle of natural prolongation. Moreover, if the critical date is deemed to be the year of 1996, when conflicting claims on the legal basis on continental shelf became distinct, inter-temporal law needs to be discussed. In such a case, if the change in law (incorporating distance criterion) is merely a treaty rule of UNCLOS, non-retroactivity principle in the law of treaties would neatly determine the application of natural prolongation principle established in previous law. In case that the change in law is an alleged customary rule emerged around the year of 1982, were this subsequent law applied, a reasonable long period of time from the previous law would have been required. It is impossible in the present case to draw a conclusion that the evolution of the law on continental shelf over just twelve years (1969-1982) could be reasonably taken as a long period of time. Therefore, even critical date were to be set in the year of 1996, the applicable law is still natural prolongation principle.
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