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意思自治原则在国际私法中主要被用于确定特定当事人之间权利义务关系的准据法。通过对几个国家动产物权冲突规范中意思自治原则的分析,本文认为,意思自治原则被引入动产物权冲突规范时,并未突破这一限制。因此,意思自治原则如何适用于动产物权冲突规范这一问题其实就可以被转化为,动产物权变动交易中,原因行为和结果行为应当如何区分的问题。通过区分原则可以将动产物权变动中的特定当事人之间的行为(债权行为)与对第三人有影响的行为(物权行为)加以区别。在此基础上对动产物权变动中的债权行为可适用当事人意思自治原则,而对于动产物权变动中的物权行为则应适用物之所在地法。我国已在现行动产物权冲突规范中引入了当事人意思自治原则,但却未对意思自治的适用范围加以限制,加之我国涉外民商事司法实践中对物权变动的原因行为和结果行为不加区分,因此,在司法实践尚未做好准备的情况下,立法上的激进可能会给实践带来一定困难。
The principle of autonomy in private international law is mainly used to determine the law of rights and obligations between specific parties. Through the analysis of the principle of autonomy of means of intention in the conflict of several kinds of national property rights in several countries, this paper argues that the principle of autonomy of means did not break through the limitation when it was introduced into the regulation of the conflict of property rights. Therefore, how the principle of autonomy of means should apply to the norm of conflict of property right in real property can in fact be transformed into the question of how to distinguish between cause and effect and result result in the transaction of property right. By the principle of differentiation, the behavior between specific parties (creditor’s rights) in the movement of the ownership of movable property can be distinguished from those that affect the third person (the real right behavior). On this basis, the autonomy principle of party autonomy can be applied to the creditor’s rights in the change of real right of the movable property, while the property law of the applicable property should be applied to the change of the property right of the movable property. China has introduced the principle of party autonomy into the conflict of real right of property right, but it does not restrict the scope of application of autonomy of will. In addition, there is no distinction between the cause and effect of the change of real right in China’s foreign-related civil and commercial judicial practice Therefore, in the absence of judicial practice to prepare for the case, the legislative radical may bring some difficulties to practice.