【作者】 杜焕芳；

【导师】 黄进；

【作者基本信息】 武汉大学 ， 国际法， 2005， 博士

【摘要】 论文的主题是有关国际民商事司法与行政合作制度的研究。作为一个事实,近年来,国际私法中的司法与行政合作的因素日益增多。国际民商事司法与行政合作之所以受到理论与实践的关注和青睐,是因为国际社会解决民商事争议的现实需要和司法与行政合作机制本身的功能使然。从国内外的研究状况来看,国际民商事司法与行政合作已经在一定程度上引起了理论界的重视,特别是随着民商事司法与行政合作类型公约的制定和修改,日益认识到其重要性。实务部门在处理实际案件中,在利用司法与行政合作的各种方法的同时,也提出了各种改革意见。与国际上的研究热度相比较而言,国内在这方面的研究力度明显不够。 论文从理论和实践两个层面,从国内和国际两种体制,运用理论分析和综合研究相结合、历史分析和动态研究相结合、比较分析和规范研究相结合、实证分析和批判研究相结合、理论阐述与实际运作相联系的研究方法,对国际民商事司法与行政合作加以比较全面的梳理,对其基本问题、历史发展、组织架构、合作领域、合作方法以及国内实施等作比较系统的研究,并认为它正在成为国际私法中一个相对独立的新兴领域,具有实在性功效和潜在性意义。 论文约34万字,共分七章,前后有导论和结语。 在导论部分,论文分析了国际民商事司法与行政合作的研究现状及研究意义,说明了国际民商事司法与行政合作的研究思路及研究方法。就理论意义而言,通过此项课题的研究,能够拓展国际私法的研究范围,提高国际私法的应用价值。国际民商事争议的解决,不仅要靠法律适用规范、管辖权规范、判决或裁决的承认与执行规范,而且要靠司法与行政合作规范来解决域外送达、域外取证、司法救助等诉讼程序中的难题,以及解决扶养费的跨国追索、跨国儿童收养的安排、被诱拐儿童的返还等实际个案中的困境。就实践意义而言,通过对国际民商事司法与行政合作机制的研究,有助于倡导和推广这种合作机制,使之成为统一国际私法的新机制。同时,统一国际私法的这种新机制在立法和实践中还存在许多问题和困难,通过研究,也有助于改进和发展这种合作机制。 正文部分,除第一章属于基础性的理论铺垫之外,其余六章遵循国际民商事司法与行政合作的发生与创制、运作与实现、效能与再生这样一个思路来展开论述。 首先,从分析国际法律合作形式的多元化与差异性并存,国际司法合作的功能从自治型向回应型转变的法律理念入手,对国际民商事司法与行政合作的基本理论问题做了探讨,包括法律概念和法律属性的界定,法律渊源和基本原则的阐明(第一章)。国际民商事司法与行政合作是国际司法与行政合作在民商事领域的体现,具有国际法更多还原

【Abstract】 The title of this dissertation is on the international judicial and administrative co-operation system in civil and commercial matters. As a fact, the private international law is packed with factors of the judicial and administrative co-operation day by day in recent years. The reasons why both the theory and practice pay close attention to the international judicial and administrative co-operation in civil and commercial matters are that, on one hand, there are factual requirements for resolving disputes over civil and commercial matters in international community, on the other hand, its functional mechanism makes it right.According to domestic and international situation on its research, the international judicial and administrative co-operation in civil and commercial matters has been already paid attention to by the theoretical circle to a certain extent. Especially with the enactment and modification of some conventions on the international judicial and administrative co-operation in civil and commercial matters, the theoretical circle realizes its importance day by day. The practical departments have also put forward various kinds of reformatory suggestions while utilizing various kinds of methods of the judicial and administrative co-operation during dealing with the corresponding cases. Comparatively speaking, the research in this respect is not enough obviously in china.From two aspects of the theory and practice, combing with domestic and international systems, the dissertation makes a more comprehensive research into the international judicial and administrative co-operation in civil and commercial matters, studies its basic problems, historic development, organized foundation, co-operative fields, co-operative approaches and domestic implementation systematically, and concludes that it is becoming one of new and independent relatively fields in the private international law.The dissertation is divided into seven chapters altogether with an introduction and a conclusion. There are about 340,000 characters in all. In the introduction part, it analyses the current situation on this research and the meaning of the international judicial and administrative co-operation in civil and commercial matters, and states research routes and approaches to the international judicial and administrative co-operation in civil and commercial matters. In the text part, except the first chapter belonging to the basic theory, other six chapters discuss the international judicial and administrative co-operation in civil and commercial matters according to such a route as its emergence and creation, itsoperation and realization, its efficiency and re-generation.At first, starting with analyzing its legal ideas of the co-existing between the pluralism and diversity in the international judicial co-operation, of the change from autonomous type to responsive type of the international judicial co-operation, Chapter 1 highlights some basic theoretical issues of the international judicial and administrative co-operation in civil and commercial matters, including its definition of legal concept and legal status and the expounding of its legal sources and fundamental principles, etc.Secondly, from the angle of the emergence and creation of the international judicial and administrative co-operation in civil and commercial matters, Chapters 2 and 3 analyze its background of formation, the current situation of development and the trend of development, and introduce legislative practice that such international organizations as the Hague Conference on Private International Law, European Union and Organization of American States carry out in this aspect at the same time. These are historic bases and organized foundation of the international judicial and administrative co-operation in civil and commercial matters.Moreover, from the angle of the operation and realization of the international judicial and administrative co-operation in civil and commercial matters, Chapters 4, 5 and 6 deal with its several fields on the one hand, including procedure fields such as service abroad of documents, the taking of evidence abroad, international access to justice and legalisation for foreign public documents, and substantial fields such as the reimbursement of maintenance, intercountry adoption of children, return of abducted children and specific protection of weak persons, on the other hand, discuss its several approaches, including establishment of central authorities, unification of co-operative standards, providing for legal information, direct judicial communication and joint case management. It is a sign of operative fields and realizable methods of the international judicial and administrative co-operation in civil and commercial matters.Finally, from the angle of the efficiency and re-generation of the international judicial and administrative co-operation in civil and commercial matters, Chapter 7 describes its domestic implementation - 1980 Hague Convention on the Civil Aspects of International Child Abduction, for example, mainly in Britain, U.S.A., Germany, Canada, etc. It is realization and re-generation of efficiency of the international judicial and administrative co-operation in civil and commercial matters at home.In the conclusion part, the dissertation re-thinks the international judicial andadministrative co-operation in civil and commercial matters, sums up its two kinds of characters, i.e. the constructive character and the international character, and probes into such issues as foreign-related and interregional judicial and administrative co-operation in civil and commercial matters under Chinese background rudimentarily.更多还原