涉外夫妻财产关系法律适用中意思自治和第三人利益保护的平衡

The Balance between Party Autonomy and Protection of Third Parties’ Interests in the Application of Law to Foreign-Related Marital Property Relations

摘要: 随着全球化进程的加速，涉外夫妻财产关系的法律适用问题日益复杂。其不仅关乎夫妻间的内部财产关系，还可能牵涉夫妻与第三人的外部财产关系。我国《法律适用法》第24条在涉外夫妻财产关系的协议选择上赋予了当事人的意思自治权限过大，忽略了第三人利益，如何把握当事人意思自治原则与第三人利益保护之间的平衡成为研究焦点。本文通过区分涉外夫妻财产关系的内部关系和外部关系，论述了第三人利益保护的重要性和当事人协议选择涉外夫妻财产关系法律适用时意思自治的范围、限制及效力认定，提出可以将主观条件限制作为协议选择法律时当事人意思自治效力认定的依据，并在协议选择法律过程中引入不得恶意损害第三人利益原则，注重实质正义与冲突正义的协调。

Abstract: With the acceleration of globalization, the issue of applicable laws concerning foreign-related marital property relations has grown increasingly complex. It not only involves the internal property relations between spouses but may also extend to the external property relations between spouses and third parties. Article 24 of China’s Law on the Application of Laws grants excessively broad autonomy to parties in their agreement-based choice of laws for foreign-related marital property relations, overlooking the interests of third parties. Thus, striking a balance between the principle of party autonomy and the protection of third-party interests has become a focus of research. By distinguishing between the internal and external dimensions of foreign-related marital property relations, this paper expounds on the importance of protecting third-party interests, as well as the scope, restrictions, and validity determination of party autonomy when parties agree on the applicable laws for such relations. It proposes that subjective conditional restrictions can serve as the basis for determining the validity of party autonomy in the agreement on applicable laws, and that the principle of refraining from maliciously harming third-party interests should be introduced into the process of agreeing on applicable laws, with emphasis on coordinating substantive justice and conflict justice.