论我国保险监管制度改革与完善外文翻译原文和译文.docx

《论我国保险监管制度改革与完善外文翻译原文和译文.docx》由会员分享，可在线阅读，更多相关《论我国保险监管制度改革与完善外文翻译原文和译文.docx（16页珍藏版）》请在淘文阁 - 分享文档赚钱的网站上搜索。

1、论我国保险监管制度改革与完善，外文翻译原文和译文论我国保险监管制度的改革与完善,外文翻译原文和译文 外文文献原文 Evasion of Law and Mandatory Rules in Private International Law J.J. FAWCETT Cambridge Law Journal, 1990, 49(1):44-62 Source: Cambridge Journals，http:/journals.cambridge.org INTRODUCTION IT has often been asserted that English private internat

2、ional law has no doctrine of evasion of the law. It is true that English law has never developed a general doctrine, like the French one of fraude a la hi, to deal with cases of evasion. Nonetheless, evasion of the law has been recognised as a problem in at least some areas of private international

3、law, and an increasing number of specific anti-evasion measures have been introduced in response to this. The English approach towards evasion is a pragmatic one rather than being based on any broad underlying theory. In particular, the fundamental questions have not been addressed of what is wrong

4、with evasion of the law and how it can be dealt with most effectively. The purpose of this article is to examine the present law on evasion, determine what is wrong with evasion of the law and put forward proposals for a principled approach to deal with the problem. I THE PRESENT LAW ON EVASION The

5、most obvious sense in which the law is evaded is when persons deliberately flout the law, for example a taxpayer fails to declare all his income to the Inland Revenue, or a person smuggles goods into a country in breach of import controls. In such cases the party seeking to evade the law wishes no l

6、aw to apply. The private international lawyer may be concerned with this type of case, for instance the English courts may be asked to enforce a contract the performance of which involves the illegal export of goods.Of more interest to the private international lawyer, and the subject of this articl

7、e, are those cases where laws are evaded by persons showing a preference for the application of one countrys law rather than that of another. People can show this preference by going to another country in the expectation that that countrys law will be applied to their affairs. This has happened in t

8、he sphere of family law where evasive marriages, divorces and abduction of children are well known. Evasion can also take place in the commercial sphere where the particular method of evasion takes a different form, i.e. contractual agreements that a particular law will apply. Those areas in which e

9、vasion has been recognised as being a problem: marriage, divorce, child abduction and custody, and contract, will now be examined in detail, after which some conclusions will be drawn on the nature of the approach towards evasion adopted under the present law. A. Evasive Marriages Evasive marriages

10、have been a well known phenomenon since the earliest days of conflict of laws. Starting with Brook v. Brook in the middle of the nineteenth century there has been a spate of reported cases involving English couples going to Denmark or Germany to marry in order to evade the English law on the prohibi

11、ted degrees of marriage. After the marriage the couple would return to live in England. The English courts strongly objected to the attempt to evade English law in these cases and refused to recognise the foreign marriage. The technique for dealing with the evasion was to classify the issue in the c

12、ase as being one of essential validity and to apply the law of the domicile of the parties, England, to the question of the validity of the foreign marriage. In other words, the courts moulded their private international rule on capacity to enter a marriage to stop evasion of the law. The gradual re

13、laxation in the prohibited degrees under English law has largely meant the end of such instances of evasion. However, it still remains the case that, for example, an uncle will be unable to marry his niece in England but he may be able to do so under some foreign systems of law. Better known to laym

14、en than the Danish marriages cases are the Gretna Green marriage cases.At one time young English couples would elope to Scotland in order to evade the English requirement of parental consent for the marriage of a child between the ages of 16 and 21. Such a child could marry in Scotland without paren

15、tal consent, there being very much less formality for marriage under Scots law. The reduction of the age of majority to 18 in England has meant that in most cases there is no longer any need for young couples to go to Scotland to enter into a valid marriage. However, the attitude of the English cour

16、ts towards Gretna Green marriages is instructive and contrasts strongly with their attitude towards the Danish marriages. No objection was made to the parties evading the English requirement of parental consent by going to marry in Scotland and these Scots marriages were recognised as being valid. T

17、he issue was classified as one of formal validity and the law of the place of celebration was applied to the marriage, i.e. Scots law. The private international law rule was not moulded to stop evasion. The traffic in evasive marriage was not all one way. There are well known instances of French cou

18、ples coming to England in order to evade stringent French requirements of parental consent to the marriage of children up to the age of 25. Not surprisingly, in the light of the Gretna Green marriages, these English marriages were regarded as being valid, despite the clear evasion of French law by t

19、he parties. B. Evasive Divorces In 1868 in Shaw v. Gould Lord Westbury, speaking in the context of a Scots divorce obtained by an English domiciliary said that: No nation can be required to admit that its domiciled subjects may lawfully resort to another country for the purpose of evading the laws u

20、nder which they live. When they return to the country of their domicile, bringing back with them a foreign judgment so obtained, the tribunals of the domicile are entitled or even bound, to reject such judgment, as having no extra-territorial force or validity. A hundred years later there was consid

21、erable judicial concern that, whilst the rules on recognition of foreign divorces should be liberalised and made more flexible, “quickie“ divorces obtained abroad after a short period of residence should not be recognised. The technique for achieving this was to introduce at common law a real and su

22、bstantial connection test as a basis for the recognition of foreign divorces. A petitioner who was merely temporarily in, for example, Nevada when he obtained his divorce, would not be able to satisfy this test and the foreign divorce would not be recognised. The attitude subsequently changed and th

23、e Recognition of Divorces and Legal Separations Act 1971 enshrined the Law Commissions philosophy that, if there had been forum shopping, the harm had already been done, and in order to prevent a limping marriage the foreign divorce should still be recognised in England. This still remains the gener

24、al view to this day. However, there are two specific statutory anti-evasion provisions which constitute exceptions to this general rule. Both provisions are concerned with extra-judicial divorces. There was a concern shown by the judiciary and then by Parliament that parties should not be able to ev

25、ade the English system of divorces granted by courts and the English law on financial provision on divorce by obtaining in England an extrajudicial divorce. Since 1974 such extra-judicial divorces have therefore been denied recognition. There was then a concern that the particular statutory provisio

26、n denying recognition to this type of divorce could itself be evaded by English residents going abroad, for example on a day trip to France, to obtain an extra-judicial divorce which, because it would be recognised in their foreign domicile, would be recognised in England. The latest version of the

27、relevant statutory anti-evasion provision seeks to prevent this by denying recognition to extra-judicial divorces obtained, without proceedings, outside the British Islands if either spouse had for a period of one year immediately preceding the institution of the proceedings habitually been resident

28、 in the United Kingdom. The latter provision does nothing to prevent an English domiciliary from evading his financial responsibilities to his spouse by obtaining an extra-judicial divorce in the state of his nationality, and then having this recognised in England. However, the Court of Appeal in Ch

29、audhary v. Chaudhary held that, in such circumstances, recognition of the divorce would be contrary to public policy, thereby preventing the evasion. C. Child Abduction and Custody The most recent problem of evasion to arise in the family law area involves cases of child abduction and custody. If th

30、e parents of a child are in dispute over the custody of a child and the parent who has not been granted custody by the English courts seizes the child and removes it abroad, there is a deliberate flouting of the English law in that the English custody order has been disregarded. This is regarded as

31、a very serious matter and Parliament has intervened to introduce new criminal offences concerned with taking a child under the age of 16 out of the jurisdiction without consent. There may also be an element of the errant parent preferring the application of a foreign law in that this parent may seek

32、 and obtain a custody order abroad. The problem is essentially one of getting a foreign court to recognise the English custody order or the custody rights (if no order has been made) and return the child to England. There are now international conventions on child abduction and custody, and if the c

33、hild is removed to a country which is a party to these conventions, that country may be obliged to recognise the English custody order and rights. As far as the United Kingdom is concerned the international conventions were brought into effect by the Child Abduction and Custody Act 1985, which requi

34、res English courts to recognise foreign custody orders and rights in certain circumstances. D. Evasive Contracts In contract cases the judiciary appear on the face of it to have a strong objection to evasion of the law. In theory the requirement laid down in Vita Food Products v. Unus Shipping that

35、the parties choice of the applicable law must be made in good faith, will stop all cases of evasion of the law. Even if the case involves an issue of formal validity of the contract the bona fides doctrine can still come into play. This contrasts with marriage cases where, as has been seen, the evas

36、ion of formal requirements is not objected to. However, in practice the requirement of a bona fide choice does not appear to restrict the parties freedom to choose the applicable law. There is no reported English case in which the parties choice has been struck out on this ground. It is important to

37、 notice that, although the Vita Foods Case introduced a restriction on party autonomy, this restriction did not apply on the facts of the case and the result was to allow parties to evade the Hague Rules. Much more important than the common law doctrine of bona fides are the specific statutory anti-

38、evasion provisions that have been introduced into the area of contract. The most famous of these is contained in section 27 of the Unfair Contract Terms Act 1977. This section prevents evasion of English law, or the law of any other part of the United Kingdom, by restricting the parties freedom to c

39、hoose a foreign law. It provides that the Act and the protection it gives to consumers still has effect if the choice of law appears “to have been imposed wholly or mainly for the purpose of enabling the party imposing it to evade the operation of this Act“. The section goes on to provide as an alte

40、rnative that the Act will apply, despite the parties choice, if “in the making of the contract one of the parties dealt as consumer, and he was then habitually resident in the United Kingdom, and the essential steps necessary for the making of the contract were taken there, whether by him or by othe

41、rs on his behalf“. The section, more controversially, also prevents parties from evading foreign law. It restricts the right of parties, whose contract has a foreign objective proper law, to choose the law of part of the United Kingdom by providing that, in such a case, certain sections of the Act w

42、ill not apply as part of the proper law. Another example of a statutory anti-evasion provision is to be found in the Carriage of Goods by Sea Act 1971, implementing the Hague-Visby Rules. Under the old Hague Rules there was a problem of people evading those Rules by the insertion of a choice of law

43、clause in their contract. This gap was closed by the insertion in the Hague-Visby Rules of a new Article X to replace the original Article X in the Hague Rules. This lays down the territorial scope of the new Rules, and is coupled with a provision in the implementing legislation which states that th

44、e Rules, as set out in the Schedule to the Carriage of Goods by Sea Act 1971, shall have the force of law. According to the House of Lords in The Hollandia the intention of Parliament was for the new Rules to apply whenever the case comes within Article X, regardless of whether there is a foreign pr

45、oper law. Their Lordships were concerned to interpret the Act and the Hague-Visby Rules in such a way as to prevent the possibility of their being evaded. As Lord Diplock said: the Hague-Visby Rules should be given a purposive rather than a narrow literalistic construction, particularly wherever the

46、 adoption of a literalist construction would enable the stated purpose of the international convention, viz., the unification of domestic laws of the contracting states relating to bills of lading, to be evaded by the use of colourable devices that, not being expressly referred to in the rules, are

47、not specifically prohibited. An Ad Hoc Approach What is noticeable about the present law on evasion is that no general principle has been developed to explain why evasion is regarded as objectionable in some cases but not in others. The law seems quite inconsistent, with evasive Gretna Green marriag

48、es being regarded as perfectly acceptable but evasive Danish marriages being regarded as beyond the pale. The whole approach towards evasion is essentially an ad hoc one; not only are different types of evasive marriage treated differently, but also evasive marriages are treated in isolation from ev

49、asive divorces or evasive contracts. This ad hoc approach extends to the technique for dealing with those cases where evasion is regarded as objectionable. In some cases specific statutory anti-evasion provisions have been adopted to deal with evasion; in other cases the technique has been to mould common law rules to deal with the problem. The result is that the present law on evasion can be seen to be unduly complex, uncertain and inconsistent. A more principled approach is needed but before this can be developed an answer is required to the fundamental question, which so far h