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识别是国际私法中的重要制度,是司法机关或仲裁机关处理涉外民商事案件时确定冲突规则从而确定准据法的前提条件。由于各国法律在观念和制度上存在各种差异,识别冲突在所难免。传统观念认为,法官仅是本国法律的执行者,因此识别仅能依据本国法进行。这种观点未站在国际民商事自由交往的角度,实际上对内外国法没有进行平等对待,在个案中也可能无法实现实质的公平正义。在具体涉外民商事案件的审判中,当法官敏锐发觉识别冲突的存在时,应将识别纳入法律适用、个案裁判的全过程,从实现司法终极目标角度进行法律适用,即识别的过程也应体现实质正义的要求。
Identification is an important system in private international law and is a prerequisite for the determination of the law of conformity by judicial organs or arbitration agencies in determining conflict rules when handling foreign-related civil and commercial cases. Conflict identification is unavoidable due to the differences in concepts and systems among different countries. According to the traditional view, the judge is only the executor of the law of his own country, so the identification can only be conducted according to the national law. This view does not stand in the perspective of free exchanges between international civil and commercial affairs. In fact, there is no equal treatment of domestic and foreign laws, and substantive fairness and justice may not be realized in individual cases. In the specific trial of civil and commercial cases involving foreign affairs, when the judge is acutely aware of the existence of the conflict, the recognition should be incorporated into the whole process of the application of law and case adjudication, and the law should be applied from the perspective of ultimate goal of judicature. That is, the process of identification should also be reflected Real justice requirements.