我國法院適用“有利於保護弱者權益”條款的實證研究

An Empirical Study of the Application of the Clauses ''in Favor of Protecting the Rights and Interests of the Weak'' by Chinese Courts

從我國法院適用“有利於保護弱者權益”條款的司法實踐來看，網上可查詢到的裁判文書數量不多，每年10份左右；案由涵蓋較廣；准據法單一，均為中國法；法院未對“有利於保護弱者權益”的考量因素進行說理。裁判文書存在混淆程序法和實體法問題，對衝突規範概念識別不清，對“有利於保護弱者權益”的考量因素不明，進行外國法查明等問題。針對上述問題，提出應當釐清衝突規範的界限，準確理解衝突規範中“當事人”“弱者利益保護”等概念，從主觀和客觀角度綜合考慮保護弱者權益，適當給予弱方當事人法律選擇權，加強外國法查明，更好地落實涉外婚姻家庭領域中的弱者權益保護。

From the judicial practice of Chinese courts in applying the clause ''in favor of protecting the rights and interests of the weak'', this paper finds that the number of cases available online is not large, less than 10 per year. The cause of action covers a wide range, and the applicable law is relatively single, all of which are Chinese laws. And there is no justification for the considerations of ''in favor of protecting the rights and interests of the weak'' There are issues such as confusion between procedural and substantive laws, unclear identifying of the concept of conflicting rules, unclear considerations of ''protecting the rights and interests of the weak'' and lack of identification of foreign laws. This paper proposes to clarify the boundaries of conflict rules, and understand the meanings of concepts in conflict rules, such as ''party'' and ''protecting of the interests of the weak''. Secondly, courts should consider the protection of the rights and interests of the weak from both subjective and objective perspectives, appropriately give the weak parties the right to choose the law, and strengthen the identification of foreign laws.