我國《法律適用法》立法補缺規則的實踐省思

Practical Reflections on the Legislative Filling Rule of Chinese Choice of Law for Foreign-related Civil Relationships

《法律適用法》第2條第2款採取最密切聯繫原則克服立法的滯後性和不周延性。截至2023年8月31日，我國法院審理涉及第2條第2款涉外民商事案件近300件，其主要分佈在東南沿海發達地區。第2條第2款主要適用於法律沒有規定或法律規定不周延兩種情況，其運用過程中存在無推理、與其他條款混用及錯誤適用等問題。為了進一步提高第2條第2款司法實踐運用水平，立法上應規定意思自治原則進行補充、實踐上應明確其適用的具體範圍、司法上應採取綜合分析方法。

In response to the limitations of the lagging nature of statutory law, most countries have adopted the rule of legislative gap-filling to make up for it. The second paragraph of Article 2 of Choice of Law for Foreign-related Civil Relationships adopts the Most Significant Relationship Doctrine, which overcomes the hysteresis and incompleteness of legislation. If there are no provisions in this Law or other laws on the application of any laws concerning foreign-related civil relations, the laws which have the closest relation with this foreign-related civil relation shall apply. As of August 31, 2023, Chinese courts have heard nearly 300 foreign-related civil and commercial cases which related Article 2, paragraph 2, mainly distributed in developed areas along the southeast coast. In judicial practice, Article 2, paragraph 2, is mainly applicable to two situations. Firstly, there are no provisions in this law and other laws; Secondly, even if there are provisions in this law and other laws, lack of comprehensiveness of these provisions prevents their application in specific cases. The former mostly embodies cases where the law on implementation objections does not have relevant provisions, while the latter mostly embodies cases that adopt conditional selective conflict rules in the field of marriage and family. Article 2, paragraph 2, grants judges a certain degree of discretion. In judicial practice, there are some problems in its application, such as no reasoning process, mixed of articles, and incorrect application of articles. We should further reflect on the problems existing in the court's application of Article 2, paragraph 2, in order to improve the judicial practice level of judges in China and improve the legislation of private international law in China. We must introduce Party Autonomy Principle in legislative practice, that is, if this law and other laws have no provisions on the application of law to foreign-related civil relations, the law that is most closely related to the foreign-related civil relations shall be apply except that the parties have chosen the law for them or indicated that a specific law is applicable without violating the public order and good morals of China. In judicial practice, the application scope of article 2, paragraph 2 should be specified. The current ambiguity includes two situations. The first situation is without legal provisions, including provisions that are not extended in the parallel legal relationship. The second situation is that some provisions are incompatible, in which, there are no points of connection specified in the clause. If the judge could be aware of the various legislative forms of Choice of Law for Foreign-related Civil Relationships and could clarify the scope of Article 2, paragraph 2, the mixture of which will be vanished. In the methods of application, it should be based on a combination of quantitative and qualitative analyses. The quantitative analysis method requires judges to list the various elements of the legal relationship related to the case and analyze the distribution of these elements; the qualitative analysis method requires judges to take into account the relative importance of connecting factors in the legal relationship. Only in this way, the application of Article 2, paragraph 2, can be more reasonable and precise, can promote the codification of China's private international law and accelerate the improvement of the foreign-related legal and regulatory system, coordinate both the domestic and foreign-related rule-of-law, promote the joint construction of high-quality development of the ''the Belt and Road'', promoting the construction of a community with a shared future for mankind.