摘要
羊某某与英国嘉年华公司海上、通海水域人身损害纠纷案是我国首例邮轮旅客公海人身损害赔偿案件。在该案中,法院认为《涉外民事关系法律适用法》第四十四条无法适用于新型复杂案件,因而弃置这一规定,转将最密切联系原则上升为处理相关问题的首要规则。为此,有必要对《适用法》第四十四条的适用技术和配套规则进行明确和完善,尽可能排除其适用障碍,从源头上避免司法者随意认定法律适用难题,并任意适用最密切联系原则的情况。类似案件中,《适用法》第四十四条的适用主要面临两方面的问题。在属人法问题上,跨境法人经常居所地的认定缺乏明确的规则指引。可将欧盟法中对应的解释规则进行本地化处理,在降低适用成本的同时保留其中适时聚焦法人分支机构的核心理念,以此填补我国立法中的空缺。在属地规则方面,我国法律对侵权行为地采用不附任何条件的复义解释,侵权行为地的竞合问题较为突出。应注意到行为地的竞合在我国更多地呈现链式结构,可借助推定规则与排除事由这两个层次的筛选规则,使侵权行为地的确定有章可循。
Yang Shuying v.Carnival PLC is the first Chinese case wherein the physical damage was sustained on the board of a cruise sailing in international waters.Although the judgement of this case is acclaimed as an outstanding work in the judicial system,errors can still be found within its reasoning on choice-of-law issues.It is submitted that these errors eventually led the court to the conclusion that Article 44 of Law of the Application of Law for Foreign-related Civil Relations of PRC(LALFCR),namely the general provision for the applicable law on tortious liabilities,is no longer capable of suggesting the applicable law for cases containing intricate facts.Consequently,the court abandoned LALFCR Article 44 and decided that the doctrine of the most significant relationship(the MSR doctrine)shall be the general rule in such cases.In order to prevent the judiciary from arbitrarily deciding on an“intricate case”and discretionarily applying the MSR doctrine,it is an important step to clear all these obstacles on the way to the application of LALFCR Article 44.That is,supporting rules shall be added and relevant trail techniques concerning the application of Article 44 shall be specified.First,the infringing act in Yang Shuying v.Carnival PLC does not accord with any special form of tort.Therefore,the general provision for the applicable law on tortious liabilities,namely LALFCR Article 44,shall be applied.This Article provides that the laws at the place of tort shall apply to liabilities for tort,but if the parties have a mutual habitual residence,the laws at the mutual habitual residence shall apply.Meanwhile,if the parties choose the applicable laws by agreement after any tort event takes place,the agreement shall prevail.Second,in Yang Shuying v.Carnival PLC,the court omitted to refer to the existing rule which stipulates the way of ascertaining the habitual residence of a legal person.This renders the finding on the habitual residence of the defendant company a defective one and makes the subsequent analysis on locus delicti completely groundless.It is submitted that it can be understandable that the court made such an omission,considering that the legislation itself does not actually provide a clear instruction for the determination of the habitual residence of a legal person,especially in situations where the legal persons involved are transnational companies.It is proposed that the definition of“habitual residence”suggested by Hague Conference on Private International Law(HCCH)and relevant legislative practices in the European Union are two important references for the draft of supporting interpretations.It is also proposed that in the cases involving cruise companies,the places where home ports are situated shall be the focus when formulating these supporting rules.Third,with regard to the concurrence of locus delicti,the court in Yang Shuying v.Carnival PLC failed to determine a single locus delicti among several places of tort that appeared in this case.There is a lack of essential techniques concerning the application of the territorial rule when the court was trying to apply LALFCR Article 44.As a result,the court decided that LALFCR Article 44 is beyond any accommodation to the newly arisen cases containing intricate facts.It is worth noting that in China the concurrence of locus delicti are more likely to accord with“chain structure”and it is proposed that a two-tier filtering rule consisting of both“rule of presumption”and“rule of exclusions”shall hereto be applied as the guideline and rationale when dealing with the concurrence of locus delicti of this pattern.Last,it is the role of the MSR doctrine under Chinese legislation that shall be reiterated.In Yang Shuying v.Carnival PLC,the court abandoned LALFCR Article 44 on the excuse that this provision provides insufficient clues to the applicable law.Instead the court chose to turn to the MSR doctrine,a method providing even less guidance on the choice-of-law problems,and tried to make it the general rule in similar cases.As a common practice,a choice-of-law rule for torts usually includes the MSR doctrine in its exceptional clause together with a high threshold of triggering.In comparison to this,China is even more prudent about the role of the MSR doctrine under its legislation:the MSR doctrine can be invoked only in circumstances where no alternative rules can be found.Courts shall never expand their powers to discretionarily make references to the MSR doctrine in the case where alternative rules are available.
作者
金彭年
陶杨
Jin Pengnian;Tao Yang(Guanghua Law School,Zhejiang University,Hangzhou 310008,China)
出处
《浙江大学学报（人文社会科学版）》
CSSCI
北大核心
2023年第4期113-127,共15页
Journal of Zhejiang University:Humanities and Social Sciences
基金
浙江省社科规划重点项目(21WZQH07Z)
关键词
邮轮
公海
法人的经常居所地
侵权行为地
侵权冲突规则
最密切联系原则
cruise
international water
habitual residence of a legal person
locus delicti
conflict of law rules
doctrine of the most significant relationship
