论特征性履行理论

摘要

The doctrine of characteristic performance originated from the European civil law countries, repre-sents the new development of contemporary private international law theory, and has a profound influence on the legislation and practice of private international law. Being different from the doctrine of the most signifi-cant relationship which origins in common law, characteristic performance is based on a single specific con-nection point to determine the proper law which should be applied. Thus the proper law is objective and accu-rate. However, characteristic performance and the most significant relationship each has its own merits. Ev-ery country should adopt the legislative mode which is suitable for their own and based on their own legal system and traditional. China’s legislation has determined the most significant relationship as the supplemen-tary principle for the applicable law, and used the characteristic performance to determine the most signifi-cant connection. Therefore it can absorb the advanced theory of private international law and rooted in our country.%特征性履行原则发轫于欧洲大陆法系国家，代表了当代国际私法理论的新发展，并对各国国际私法的立法与实践产生了深远影响。不同于起源于英美法系的最密切联系原则，特征性履行依据单一具体的连结点确定应适用的准据法，因而能客观、准确地确定准据法，但是特征性履行与最密切联系原则各有千秋、互补性强。各国根据自己的法律体系与传统，采用适合于本国的立法模式。我国在立法中将最密切联系原则确定为准据法选择的补充原则，并采用特征性履行方法确定最密切联系地，既吸收先进的国际私法理论又根植于我国的法律现状。