《蒙特利爾公約》的國內化與適用：問題與出路

The Localization and Application of the 1999 Montreal Convention：Problems and Solutions

作為條約取得國內法律效力的過程，條約國內化是條約國內適用的前提。私法條約的國內化與國內適用路徑宜以其國內化後的國內適用方式對國家、法人和自然人利益保護的最大可能性為標準，以結果為導向進行個案研判確定。私法條約在我國國內的適用目前有兩種路徑：因《民法典》未接受《民法通則》第142條第2款，一般性私法條約進入了靈活適用的時代，但靈活適用的規則尚付闕如；航空等私法條約的適用仍循《民法通則》模式，即國內法媒介條款引致的間接適用模式。《蒙特利爾公約》的納入與國內法媒介條款引致的間接適用模式導致其適用機會小於預期，影響了華沙體系文件現代化的效果，使法官尋法困難與釋法錯誤可能增加，法律適用的多重矛盾難以釋明。以納入方式國內化的條約，並不意味著不能再以轉化方式賦予其國內法的效力。《蒙特利爾公約》如果採取轉化的國內化模式與衝突規範引致的間接適用模式，具有更優的條約實施效果，並可促進《民用航空法》承運人責任制度的現代化。《蒙特利爾公約》的國內化與轉化過程對未來我國其他條約的國內化與國內適用模式的確定具有示範意義。

The localization of a treaty, a process through which such treaty has force of national law, is the premise of domestic application of that treaty. The mode of localization and domestic application of a private treaty may be determined by result oriented method in accordance with the utmost possibilities of interest protection of a state, legal persons and natural persons through domestic application of the same treaty after its localization on a case-by-case basis. At present, there are two ways for the application of private treaties in China: since the second paragraph of Article 142 of the General Principles of Civil Law has not been accepted by the Civil Code, the general private treaties have entered into the era of flexible application without rules. However, as to the application of treaties relating to aviation transportation, the mode of domestic application of treaties under General Principles of Civil Law, that is, the indirect application mode guided by media clauses of domestic law, may be evoked. It is found that the current mode of localization and application of the 1999 Montreal Convention, i.e., adoption and application guided by media clause, leads to less opportunities for its application than expected, more errors made by judges in finding and interpreting the rules, and multiple contradictions hard to explain during the application of laws, which affected the effect of the modernization of Warsaw system instruments. Although the 1999 Montreal Convention is localized by adoption, it does not mean that the treaty may not have force of national law by means of transformation of the said treaty. It is proved that the mode of transformation and indirect application of the 1999 Montreal Convention guided by conflict rules may have a better effect of domestic enforcement of that Convention and promote the modernization of the carrier liability system of the Civil Aviation Law. It is found that the localization and domestic application process of the 1999 Montreal Convention is of exemplary significance for China to determine treaties’localization and domestic application mode in the future.