外文文献原文
Evasion of Law and Mandatory Rules in Private International Law
JJ FAWCETT
Cambridge Law Journal 1990 49(1)4462
Source Cambridge Journalshttpjournalscambridgeorg
INTRODUCTION
IT 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 a problem in at least some areas of private international law and an increasing number of specific antievasion 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 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 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 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 goodsOf more interest to the private 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 country＇s law rather than that of another People can show this preference by going to another country in the expectation that that country＇s law 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 ie contractual agreements 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 the present law
A Evasive Marriages
Evasive 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 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 dealing 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 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 under some foreign systems of law
Better known to laymen than the Danish marriages cases are the Gretna Green marriage casesAt 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 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 valid 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 these 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 ie 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 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 valid despite the clear evasion of French law by the 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 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 extraterritorial force or 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 this 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 recognised The attitude subsequently changed and the Recognition of Divorces and Legal Separations Act 1971 enshrined the Law Commission＇s 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 general view to this day However there are two specific statutory antievasion provisions which constitute exceptions to this general rule Both provisions are concerned with extrajudicial divorces There was a concern shown by the judiciary and then by Parliament 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 extrajudicial divorces have therefore been denied recognition There was then a concern 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 extrajudicial divorce which because it would be recognised in their foreign domicile would be recognised in England The latest version of the relevant statutory antievasion provision seeks to prevent this by denying recognition to extrajudicial 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 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 extrajudicial divorce in the state of his nationality and then having this recognised in 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 Custody
The most recent problem of evasion to arise in the family law area involves 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 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 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 on 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 Abduction and Custody Act 1985 which requires 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 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 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 struck 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 bona fides are the specific statutory antievasion 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 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 The 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 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 a case certain sections of the Act will not apply as part of the proper law
Another example of a statutory antievasion provision is to be found in the Carriage of Goods by Sea Act 1971 implementing the HagueVisby Rules Under the old Hague Rules there was a problem of people evading those Rules by the insertion of a choice of law clause in their contract This gap was closed by the insertion in the HagueVisby 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 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 regardless of whether there is a foreign proper law Their Lordships were concerned to interpret the Act and the HagueVisby Rules in such a way as to prevent the possibility of their being evaded As Lord Diplock said
[the HagueVisby Rules]
should be given a purposive rather than a narrow literalistic construction 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 expressly referred to in the rules are 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 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 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 antievasion 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 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 Guilt
The 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 desire 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 regarded 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 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 insurance 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 because 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 cause 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 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
外文文献译稿
国际私法中法律规避强制性规
JJ福西特
剑桥法律期刊199049(1)：4462．
源：剑桥期刊网httpjournalscambridgeorg
引言
常常说英国国际私法学说中没法律规避原事实确英国法律中关法律规避原没发展成般理法国中fraude à la loi（欺诈性法律）处理法律规避案件然法律规避已认问题少区国际私法中针法律规避行区采取越越反规避措施英国言法律规避应务实行基空泛理基础特关法律规避影响更效解决法律规避根问题没解决文写作目考查现行法律法律规避规定确定法律规避效力解决法律规避问题提出原性建议
关法律规避现行立法
法律规避明显直接感觉行意规避法律法律视举例子纳税没税务局实申报收入进入国境时走私货物违反该国进口货物制种情况行试图规避法律希相关法律适法律视国际私法法律工作者会更关注种类型情况例英国法院许会求强制执行合中涉非法出口货物国际私法法律工作者更关注法律规避案件中显示行国家法律更优先选择适问题样文题通进入国家希该国法律适处情况表明法律选择已类似规避结婚离婚收养等家庭法律关系中非常普遍具体规避方法种形式商业领域样发生着通合协议某特定法律适领域法律规避已公认问题：结婚离婚监护诱拐童合关系现详细分述出现行法律法律规避接受实质方法结
（）结婚关系法律规避
早期突法产生开始结婚关系法律规避直众周知现象十九世纪中叶布鲁克五世时期已系列规避结婚法律案例报道：英国夫妇规避英国法律中结婚禁止性规定前丹麦者德国结婚结完婚回英国居住英国法院强烈反种试图逃避英国法律行拒绝承认种国外结婚效力英国涉外婚姻效力问题解决法律规避方法问题进行效分类适事国籍法换言法官良国际私法规专业力相应规运结婚关系中禁止事规避法律行英国法律禁止程度逐渐放宽程度意味着类似规避行结束然旧存着样情况英国法律允许叔叔侄女结婚国外法律体系中样做
起述丹麦结婚例子更知格雷特纳格林结婚案件时年轻英国夫妇常会私奔苏格兰英国法律求1621岁孩子结婚必须父母意没父母意情况规避项规定年轻夫妇会私奔苏格兰里结婚没太礼节手续需征父母意英国法定年龄降18周岁意味着数情况年轻夫妇需获效婚姻苏格兰格雷特纳格林结婚案件英国法院态度具指导意义规避法律丹麦结婚态度形成鲜明事规避英国法律规定征父母意求苏格兰结婚予反样婚姻效力予认苏格兰法律正式认效适结婚关系见国际私法规中禁止法律规避
结婚关系法律规避非完全单法国夫妇规避法律英国结婚著名实例结婚方面法国着英国更严格求父母等子女满25周岁意结婚许规避该规定年轻法国夫妇英国结婚格雷特纳格林结婚案种方式婚姻已认效事明显规避法国法律
（二）离婚关系法律规避
1868年古尔德韦斯特伯里五世时期苏格兰离婚获英国国籍背景英国公告说：
国国籍公民规避国法律合法利国家法律没国家会承认种行效力带着外国法院判决回国家时法院权利甚义务拒绝承认样判决判决没域外强制效力
百年更司法部门关注样问题认外国离婚承认规应开放更加灵活国外获短期居留期间闪电离婚效力认实现种规方法普通法律中介绍真正实质性标准作识国外离婚效力基础暂居国申请离婚暂居华达州获准离婚满足标准样离婚承认1971年法律委员会制定离婚合法分居承认条例态度发生变化认果行已挑选法院（事利国际民事辖权积极突众辖权法院中选择满足诉讼请求法院起诉）结果已定解决举步维艰稳定婚姻问题英国应规避国法律国外离婚效力予认
时日英国然普遍认两特殊禁止规避规定作般规补充两补充规定涉外离婚司法部门国会关注法院英国法律承认离婚事通英国涉外离婚判决规避英国财产分割离婚制度1974年样涉外离婚拒绝承认值注意某特定法律条文拒绝承认离婚类型做出规定条文身事通国家方式规避法国天行例外国离婚判决法国法国视行国外住适法国相关法律英国关反规避法律新理旨通拒绝承认涉外离婚判决禁止述行英国外夫妇方国外居住达年便视常居住优国提起诉讼者规定没阻止通国获涉外离婚判决英国国籍规避配偶济责英国逐渐认识点乔杜里诉乔杜里案诉法院认种情况离婚承认违反公政策禁止情形法律规避行
（三）监护诱拐童
法律规避问题集中家庭关系法律领域涉监护诱拐童孩子父母孩子监护权发生争议诉诸法院法院判决裁定方享监护权方孩子转移国外规避监护权丧失种情况蓄意藐视英国法律监护秩序果非常严重国会已推出新刑事罪行关未意未满16周岁孩子带出国脱离司法辖行偏离正路父母孩子转移国外希通适国家法律获孩子监护权实质外国法院承认英国监护秩序者监护权利孩子带回国现监护诱拐童国际公约果童转移国家该国公约缔约国国家认英国监护秩序监护权力英国说关注国际公约1985监护诱拐童法案生效情况求英国法院承认某情况外国监护令权利
（四）合关系法律规避
合案件中司法部门非常强烈反规避法律行理说始维塔食品公司诉联合国学船务公司案该案件中英国法官学者总结出方事选择法律适时必须诚信禁止切规避法律形式维塔诉联合国学船务案涉合善意理否正式效问题容否认理发挥巨作正样婚姻案件完全婚姻关系中形式规定反规避实践中善意选择法律似想样限制事选择适法律英国没相关案例报道值注意维塔诉联合国学船务案 提出事意思治限制实际案件中适结果事规避海牙规
起惯法中善意原更重具体法令中关合关系反法律规避规定中著名规定载1977年公合条款法案中第27节节通严格限制事选择外国法律阻止事规避英国法律规定果法律选择出现方事规避法案适已实行全部部分法案具效力规定果合缔约方消费者惯常居英国合履行英国事选择国法律法案适具争议法案中节事规避外国法律加规定禁止事规避外国法律果合中规定意图适外国准法该法案某部分适准法部分公合条款法案严格限制合事选择法律权利
外反法律规避法律贯彻执行海牙维斯规制定1971年海货物运输法旧海牙规实行中存着事合中插入法律选择条款意图规避该规海牙维斯规中漏洞填补海牙维斯规编写新第十条代原旧海牙规第十条新规明确规定适范围规定声明适海牙维斯规1971年海货物运输法附表中载明述规具法律效力根霍兰迪亚议院意思国会意图适新海牙维斯规符合新第十条规定情形合中否已约定外国准法法官防止规避法律性样解释海货物运输法海牙维斯规 ：
（海牙维斯规）应予立法意思狭隘拘泥字面构造采纳字面意思会违国际公约目违统缔约国关海货物运输中种规定根目规中没明确提明文禁止
专门方法
现行法律中关法律规避问题令关注没形成般原解释什情况法律规避禁止情况法律规避允许格雷特纳格林结婚案中法律规避接受丹麦结婚规避法律认超越法律规定禁止关法律规定起相统总说法律规避应制定原性专门解决方法类型情况处理专门方法然涉禁止法律规避案件中案件中特定反法律规避条款已渐渐接受令案件中采准法规立法技术处理法律规避问题做结果感现行法律处理法律规避问题复杂确定统更原性方法需提出前先解决英国法律忽视许久基问题：法律规避问题？
二法律规避问题？
（）道德谴责
规避词充满狡猾含义种欺诈行容易动掉进先入陷阱逃避法律行身道德种行应受谴责合关系例合领域中事选择法律认逃避法律行遭道德谴责免受道德制约求合双方事合意选择适法律必须出善意考虑动机纯选择视恶意选择法律效赋予事选择法律处理事务权利原没错事实样做非常取事应该做出样选择事意思治法律更加确定维护事预期积极性情况事种选择会法律适更加方便双方愿意采更更完善法律适国际保险运输合事会选择适英国法律认英国方面法律发展完善事实合国家没关联没会责难种类型行果事选择适法律更喜某完善法律具体规定国家说会糟？方事种情况做确保完善法律适进交易提供力保障增加交易安全性商业合行结婚行效应该令担心应继续种事动机良错误认识基础继续谴责司法部门略伪善做种道德判断通利公秩序反致等手段规避法律适规避法律容喜欢
然种情况规避法律事动机没什问题意味着种做法非议时候规避法律会带公甚会国国家利益造成损害
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Evasion of Law and Mandatory Rules in Private International Law
JJ FAWCETT
Cambridge Law Journal 1990 49(1)4462
Source Cambridge Journalshttpjournalscambridgeorg
INTRODUCTION
IT 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 a problem in at least some areas of private international law and an increasing number of specific antievasion 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 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 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 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 goodsOf more interest to the private 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 country＇s law rather than that of another People can show this preference by going to another country in the expectation that that country＇s law 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 ie contractual agreements 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 the present law
A Evasive Marriages
Evasive 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 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 dealing 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 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 under some foreign systems of law
Better known to laymen than the Danish marriages cases are the Gretna Green marriage casesAt 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 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 valid 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 these 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 ie 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 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 valid despite the clear evasion of French law by the 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 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 extraterritorial force or 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 this 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 recognised The attitude subsequently changed and the Recognition of Divorces and Legal Separations Act 1971 enshrined the Law Commission＇s 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 general view to this day However there are two specific statutory antievasion provisions which constitute exceptions to this general rule Both provisions are concerned with extrajudicial divorces There was a concern shown by the judiciary and then by Parliament 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 extrajudicial divorces have therefore been denied recognition There was then a concern 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 extrajudicial divorce which because it would be recognised in their foreign domicile would be recognised in England The latest version of the relevant statutory antievasion provision seeks to prevent this by denying recognition to extrajudicial 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 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 extrajudicial divorce in the state of his nationality and then having this recognised in 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 Custody
The most recent problem of evasion to arise in the family law area involves 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 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 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 on 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 Abduction and Custody Act 1985 which requires 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 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 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 struck 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 bona fides are the specific statutory antievasion 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 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 The 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 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 a case certain sections of the Act will not apply as part of the proper law
Another example of a statutory antievasion provision is to be found in the Carriage of Goods by Sea Act 1971 implementing the HagueVisby Rules Under the old Hague Rules there was a problem of people evading those Rules by the insertion of a choice of law clause in their contract This gap was closed by the insertion in the HagueVisby 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 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 regardless of whether there is a foreign proper law Their Lordships were concerned to interpret the Act and the HagueVisby Rules in such a way as to prevent the possibility of their being evaded As Lord Diplock said
[the HagueVisby Rules]
should be given a purposive rather than a narrow literalistic construction 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 expressly referred to in the rules are 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 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 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 antievasion 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 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 Guilt
The 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 desire 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 regarded 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 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 insurance 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 because 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 cause 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 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
外文文献译稿
国际私法中法律规避强制性规
JJ福西特
剑桥法律期刊199049(1)：4462．
源：剑桥期刊网httpjournalscambridgeorg
引言
常常说英国国际私法学说中没法律规避原事实确英国法律中关法律规避原没发展成般理法国中fraude à la loi（欺诈性法律）处理法律规避案件然法律规避已认问题少区国际私法中针法律规避行区采取越越反规避措施英国言法律规避应务实行基空泛理基础特关法律规避影响更效解决法律规避根问题没解决文写作目考查现行法律法律规避规定确定法律规避效力解决法律规避问题提出原性建议
关法律规避现行立法
法律规避明显直接感觉行意规避法律法律视举例子纳税没税务局实申报收入进入国境时走私货物违反该国进口货物制种情况行试图规避法律希相关法律适法律视国际私法法律工作者会更关注种类型情况例英国法院许会求强制执行合中涉非法出口货物国际私法法律工作者更关注法律规避案件中显示行国家法律更优先选择适问题样文题通进入国家希该国法律适处情况表明法律选择已类似规避结婚离婚收养等家庭法律关系中非常普遍具体规避方法种形式商业领域样发生着通合协议某特定法律适领域法律规避已公认问题：结婚离婚监护诱拐童合关系现详细分述出现行法律法律规避接受实质方法结
（）结婚关系法律规避
早期突法产生开始结婚关系法律规避直众周知现象十九世纪中叶布鲁克五世时期已系列规避结婚法律案例报道：英国夫妇规避英国法律中结婚禁止性规定前丹麦者德国结婚结完婚回英国居住英国法院强烈反种试图逃避英国法律行拒绝承认种国外结婚效力英国涉外婚姻效力问题解决法律规避方法问题进行效分类适事国籍法换言法官良国际私法规专业力相应规运结婚关系中禁止事规避法律行英国法律禁止程度逐渐放宽程度意味着类似规避行结束然旧存着样情况英国法律允许叔叔侄女结婚国外法律体系中样做
起述丹麦结婚例子更知格雷特纳格林结婚案件时年轻英国夫妇常会私奔苏格兰英国法律求1621岁孩子结婚必须父母意没父母意情况规避项规定年轻夫妇会私奔苏格兰里结婚没太礼节手续需征父母意英国法定年龄降18周岁意味着数情况年轻夫妇需获效婚姻苏格兰格雷特纳格林结婚案件英国法院态度具指导意义规避法律丹麦结婚态度形成鲜明事规避英国法律规定征父母意求苏格兰结婚予反样婚姻效力予认苏格兰法律正式认效适结婚关系见国际私法规中禁止法律规避
结婚关系法律规避非完全单法国夫妇规避法律英国结婚著名实例结婚方面法国着英国更严格求父母等子女满25周岁意结婚许规避该规定年轻法国夫妇英国结婚格雷特纳格林结婚案种方式婚姻已认效事明显规避法国法律
（二）离婚关系法律规避
1868年古尔德韦斯特伯里五世时期苏格兰离婚获英国国籍背景英国公告说：
国国籍公民规避国法律合法利国家法律没国家会承认种行效力带着外国法院判决回国家时法院权利甚义务拒绝承认样判决判决没域外强制效力
百年更司法部门关注样问题认外国离婚承认规应开放更加灵活国外获短期居留期间闪电离婚效力认实现种规方法普通法律中介绍真正实质性标准作识国外离婚效力基础暂居国申请离婚暂居华达州获准离婚满足标准样离婚承认1971年法律委员会制定离婚合法分居承认条例态度发生变化认果行已挑选法院（事利国际民事辖权积极突众辖权法院中选择满足诉讼请求法院起诉）结果已定解决举步维艰稳定婚姻问题英国应规避国法律国外离婚效力予认
时日英国然普遍认两特殊禁止规避规定作般规补充两补充规定涉外离婚司法部门国会关注法院英国法律承认离婚事通英国涉外离婚判决规避英国财产分割离婚制度1974年样涉外离婚拒绝承认值注意某特定法律条文拒绝承认离婚类型做出规定条文身事通国家方式规避法国天行例外国离婚判决法国法国视行国外住适法国相关法律英国关反规避法律新理旨通拒绝承认涉外离婚判决禁止述行英国外夫妇方国外居住达年便视常居住优国提起诉讼者规定没阻止通国获涉外离婚判决英国国籍规避配偶济责英国逐渐认识点乔杜里诉乔杜里案诉法院认种情况离婚承认违反公政策禁止情形法律规避行
（三）监护诱拐童
法律规避问题集中家庭关系法律领域涉监护诱拐童孩子父母孩子监护权发生争议诉诸法院法院判决裁定方享监护权方孩子转移国外规避监护权丧失种情况蓄意藐视英国法律监护秩序果非常严重国会已推出新刑事罪行关未意未满16周岁孩子带出国脱离司法辖行偏离正路父母孩子转移国外希通适国家法律获孩子监护权实质外国法院承认英国监护秩序者监护权利孩子带回国现监护诱拐童国际公约果童转移国家该国公约缔约国国家认英国监护秩序监护权力英国说关注国际公约1985监护诱拐童法案生效情况求英国法院承认某情况外国监护令权利
（四）合关系法律规避
合案件中司法部门非常强烈反规避法律行理说始维塔食品公司诉联合国学船务公司案该案件中英国法官学者总结出方事选择法律适时必须诚信禁止切规避法律形式维塔诉联合国学船务案涉合善意理否正式效问题容否认理发挥巨作正样婚姻案件完全婚姻关系中形式规定反规避实践中善意选择法律似想样限制事选择适法律英国没相关案例报道值注意维塔诉联合国学船务案 提出事意思治限制实际案件中适结果事规避海牙规
起惯法中善意原更重具体法令中关合关系反法律规避规定中著名规定载1977年公合条款法案中第27节节通严格限制事选择外国法律阻止事规避英国法律规定果法律选择出现方事规避法案适已实行全部部分法案具效力规定果合缔约方消费者惯常居英国合履行英国事选择国法律法案适具争议法案中节事规避外国法律加规定禁止事规避外国法律果合中规定意图适外国准法该法案某部分适准法部分公合条款法案严格限制合事选择法律权利
外反法律规避法律贯彻执行海牙维斯规制定1971年海货物运输法旧海牙规实行中存着事合中插入法律选择条款意图规避该规海牙维斯规中漏洞填补海牙维斯规编写新第十条代原旧海牙规第十条新规明确规定适范围规定声明适海牙维斯规1971年海货物运输法附表中载明述规具法律效力根霍兰迪亚议院意思国会意图适新海牙维斯规符合新第十条规定情形合中否已约定外国准法法官防止规避法律性样解释海货物运输法海牙维斯规 ：
（海牙维斯规）应予立法意思狭隘拘泥字面构造采纳字面意思会违国际公约目违统缔约国关海货物运输中种规定根目规中没明确提明文禁止
专门方法
现行法律中关法律规避问题令关注没形成般原解释什情况法律规避禁止情况法律规避允许格雷特纳格林结婚案中法律规避接受丹麦结婚规避法律认超越法律规定禁止关法律规定起相统总说法律规避应制定原性专门解决方法类型情况处理专门方法然涉禁止法律规避案件中案件中特定反法律规避条款已渐渐接受令案件中采准法规立法技术处理法律规避问题做结果感现行法律处理法律规避问题复杂确定统更原性方法需提出前先解决英国法律忽视许久基问题：法律规避问题？
二法律规避问题？
（）道德谴责
规避词充满狡猾含义种欺诈行容易动掉进先入陷阱逃避法律行身道德种行应受谴责合关系例合领域中事选择法律认逃避法律行遭道德谴责免受道德制约求合双方事合意选择适法律必须出善意考虑动机纯选择视恶意选择法律效赋予事选择法律处理事务权利原没错事实样做非常取事应该做出样选择事意思治法律更加确定维护事预期积极性情况事种选择会法律适更加方便双方愿意采更更完善法律适国际保险运输合事会选择适英国法律认英国方面法律发展完善事实合国家没关联没会责难种类型行果事选择适法律更喜某完善法律具体规定国家说会糟？方事种情况做确保完善法律适进交易提供力保障增加交易安全性商业合行结婚行效应该令担心应继续种事动机良错误认识基础继续谴责司法部门略伪善做种道德判断通利公秩序反致等手段规避法律适规避法律容喜欢
然种情况规避法律事动机没什问题意味着种做法非议时候规避法律会带公甚会国国家利益造成损害
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