涉外法治建設的規則體系探究

Research on the Rules System for the Construction of Foreign-Related Rule of Law

涉外法治建設與國家法治主權密切相關。面對複雜變化的國際環境，涉外法治建設面臨諸多風險挑戰，包括國際法治發展受單邊主義影響、國際規則博弈日趨複雜多元、涉外法律體系存在薄弱環節、新興大國發展面臨外部抵制等。為積極應對這些風險挑戰，涉外法治建設應當立足國家戰略需要，堅持涉外法治建設的自主性，構建與國內法治規則體系配套銜接的涉外法治規則體系。涉外法治規則體系的構建應當堅持問題導向，推動實現深化對外開放、維護國家利益、完善國內治理、塑造國際秩序等戰略目標。為搭建國內法治與國際法治的橋樑，涉外法治建設應當充分整合各類法律淵源，包括國際法、國際組織規則、國內法涉外規範和比較法域外規範等。為完善涉外法治建設的規則供給機制，需要堅持憲法至上原則以有效控制外源性規則的法律風險，立足柔性均衡策略推動國際規則演進，循序漸進地完善適應涉外法治需求的國內法體系。

The construction of foreign-related rule of law is closely connected with a state’s sovereignty of the rule of law. The implementation of the construction of foreign-related rule of law is confronted with many risks and challenges in the background of the complex and changing international environment, including the unilateral influence on international law exerted by major powers, the complexity of international rules competition, the weak points of domestic legal framework, and the external resistance confronted by newly rising powers, etc. In order to actively respond to these risks and challenges, the construction of foreign- related rule of law shall adhere to the needs of the State’s overall strategy, insist on the autonomy of foreign-related rule of law, and establish the foreign-related rules system coherent with the domestic legal system. The construction of foreign-related rule of law shall be problem-oriented, thereby promoting the achievement of relevant strategic aims including deepening the opening-up policy, preserving state interests, refining domestic governance and shaping international order. Aiming to bridge domestic rule of law and international rule of law, the foreign-related rule of law shall effectively combine different kinds of legal resources, such as international law, the rules of international organizations, the foreign- related rules of domestic law, and the foreign-related comparative law. In order to strengthen the mechanism of rules supply for the construction of foreign-related rule of law, it is necessary to control the legal risks of external rules by adhering to the supremacy of constitution, promote the development of international rules based on the tactics of soft balancing, and refine the domestic legal system conforming to the needs of the foreign-related rule of law gradually.