論我國保險監(jiān)管制度的改革與完善 外文翻譯原文和譯文[精選]

1、 中國計(jì)量學(xué)院現(xiàn)代科技學(xué)院畢業(yè)設(shè)計(jì)（論文）外文翻譯學(xué)生姓名： xxx 學(xué)號： 專 業(yè)： 法學(xué) 班 級： 外文題目： evasion of law and mandatory rules in private international law 指導(dǎo)老師： 系： 2013年 月 日外文文獻(xiàn)原文evasion of law and mandatory rules in private international lawj.j. fawcettcambridge law journal, 1990, 49(1):44-62source: cambridge journals，mbintroducti

2、onit has often been asserted that english private international 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

3、a problem in at least some areas of private international 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 funda

4、mental questions have not been addressed of what is wrong 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 t

5、o deal with the problem.i the present law on evasionthe 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 s

6、uch cases the party seeking to evade the law wishes no law 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 priv

7、ate international lawyer, and the subject of this article, 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

8、will be applied to their affairs. this has happened in the 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

9、that a particular law will apply. those areas in which evasion 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

10、the present law.a. evasive marriagesevasive marriages 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

11、marry in order to evade the english law on the prohibited 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 deali

12、ng with the evasion was to classify the issue in the case 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

13、 a marriage to stop evasion of the law. the gradual relaxation 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 u

14、nder some foreign systems of law.better known to laymen 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 2

15、1. such a child could marry in scotland without parental 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 vali

16、d marriage. however, the attitude of the english courts 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 th

17、ese scots marriages were recognised as being valid. the 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 o

18、ne way. there are well known instances of french couples 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

19、 valid, despite the clear evasion of french law by the parties.b. evasive divorcesin 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 anot

20、her country for the purpose of evading the laws under 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

21、 validity.a hundred years later there was considerable 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 thi

22、s was to introduce at common law a real and substantial 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 recogn

23、ised. the attitude subsequently changed and the 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 recog

24、nised in england.this still remains the general 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 par

25、liament that parties should not be able to evade 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 c

26、oncern that the particular statutory provision 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 reco

27、gnised in england. the latest version of the 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 institutio

28、n of the proceedings habitually been resident 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 i

29、n england. however, the court of appeal in chaudhary 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 custodythe most recent problem of evasion to arise in the family law area involves

30、cases of child abduction and custody. if the 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

31、 has been disregarded. this is regarded as 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

32、 a foreign law in that this parent may seek 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 o

33、n child abduction and custody, and if the child 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

34、abduction and custody act 1985, which requires english courts to recognise foreign custody orders and rights in certain circumstances. d. evasive contractsin 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

35、 vita food products v. unus shipping that 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 marria

36、ge cases where, as has been seen, the evasion 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 str

37、uck out on this ground. it is important to 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 bo

38、na fides are the specific statutory anti-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

39、, by restricting the parties freedom to choose 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. th

40、e section goes on to provide as an alternative 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

41、taken there, whether by him or by others 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

42、a case, certain sections of the act will 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

43、by the insertion of a choice of law 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 implement

44、ing legislation which states that the 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, regardl

45、ess of whether there is a foreign proper 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 rulesshould be given a purposive rather than a narrow literalistic cons

46、truction, particularly wherever the 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 expre

47、ssly referred to in the rules, are not specifically prohibited.an ad hoc approachwhat 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,

48、with evasive gretna green marriages 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

49、 are treated in isolation from evasive 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

50、 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 quest

51、ion, which so far has been ignored under english law: what is wrong with evasion of the law?ii what is wrong with evasion of the law?a. moral guiltthe term evasion is a loaded one, with connotations of shifty, underhand behaviour. it is easy to fall into the trap of automatically assuming that a des

52、ire to evade the law is in itself morally reprehensible. this is what has happened in the area of contract choice of law. the requirement that the choice of the applicable law must be made in good faith concentrates on the motives of the parties, and if these are impure the choice is necessarily reg

53、arded as a bad one and to be struck out. yet there is nothing wrong in principle with parties choosing the law to govern their transactions. indeed, it is very desirable that they should make such a choice. party autonomy produces certainty in the law and upholds the expectations of the parties. in

54、some cases this choice may be made on the basis that the application of one law is more convenient than that of another. in other cases the choice may be made on the basis that the content of one law is preferred by the parties to that of another. for example, the parties to an international insuran

55、ce or shipping contract may choose the law of england to apply, despite the fact that there is no connection with this country, because they regard english law as being well developed in this area. no one would stigmatise this type of conduct. is it any worse if the parties choose a law to apply bec

56、ause they prefer some specific provisions of that law to that of some other country? what the parties are usually trying to do in such a case is to ensure that a law is applied which provides that their transaction, whether it is a commercial contract or a marriage, is valid. this should not be a ca

57、use for concern, nor should it be condemned on the mistaken basis that the parties motives are impure. moreover, there is something slightly hypocritical in the judiciary making this type of moral judgment when they themselves are quite prepared to escape from applying a law the content of which is

58、not to their liking by using such devices as public policy and renvoi.whilst there is nothing wrong with the parties motives in cases of evasion, this does not mean that the practice is unobjectionable. in some cases the evasion may involve unfairness to someone else; the evasion may even be against the national interest.外文文獻(xiàn)譯稿國際私法中的法律規(guī)避和強(qiáng)制性規(guī)則劍橋法律期刊，1990，49(1)：44-62來源：劍橋期刊網(wǎng)，引言人們常常說，英國的國際私法學(xué)說中沒有法律規(guī)避原則。事實(shí)的確如此，英國法律中關(guān)于法律規(guī)避原則沒有發(fā)展成一般理論，不像法國中的fraude la loi（欺詐性法律）來處理法律規(guī)避的案件。然而，法律規(guī)避已經(jīng)被認(rèn)為是一個問題，至少在一些地區(qū)的國際私法中，而且針對法律