轉介條款對強制規範的解釋與直接適用法的判斷

On the Interpretation of Mandatory Rules by Switch-over Clause and Judgment of Rules of Immediate Application

直接適用法構成公法強制規範在衝突法層面投射的反映。在尋找直接適用法的判斷標準時，有必要從強制規範對合同效力的影響當中獲得啟示，即特別發揮解決公私法衝突的轉介條款對強制規範的解釋功能。就轉介條款對強制規範的解釋方法而言，區別於效力位階方法的僵硬和規範分類方法的以問答問，通過賦予法官以自由裁量權，利益平衡方法能使法官妥善運用比例原則權衡因適用直接適用法帶來的公共利益和私人利益之間的衝突。就轉介條款對強制規範的解釋範圍而言，理論上完全法不必借助轉介條款，但由於我國立法的預先安排往往是過度的，與轉介條款的一般解釋相衝突，故應謹慎對待；不完全法則應由法院地國而非外國准據法所屬國的轉介條款決定強制規範如何對合同發生私法效果。總之，《中華人民共和國民法典》第153條第1款之類的轉介條款自身不構成直接適用法，而是被納入到《中華人民共和國涉外民事關係法律適用法》第4條這一直接適用法制度當中，使之具有一併解決地域法衝突和公私法衝突的複合選法功能。

Rules of immediate application are the reflection of public mandatory rules in the level of conflict of laws. So when exploring the judging standards of rules of immediate application of China, it is necessary to draw a useful lesson from the influence of mandatory rules on validity of contracts. The interpretation of mandatory rules by switch-over clauses in resolving conflicts between public and private law have to play a special role. On the interpretation methods of mandatory rules by switch-over clauses, different from the rigid standard of legal hierarchy and standard of classification of norms which is answered by introducing another question, by entrusting judges with discretionary power, standard of balance of interest could use the proportionality test properly to well weigh the conflicts between public and private interest caused by rules of immediate application. On the scope of interpretation of mandatory rules by switch-over clauses, although the complete law doesn’t need the aid of switch-over clauses any more in theory, it should be carefully handled. Because the arrangement in advance of the PRC law is excessive and conflicts with the general interpretation of switch-over clauses. The incomplete law should be decided by the switch-over clauses of forum on how to have a private law impact on contracts. On the whole, Article 153 Paragraph 1 of the Civil Code of the PRC itself does not constitute a rule of immediate application. Instead, it is included in the system of rules of immediate application which defined in the Act of the PRC on Application of Law to Foreign-Related Civil Relations, so that this system could have comprehensive functions on choice of law in both conflicts among territorial laws and conflicts between public and private law.