外文翻译原文和译文

中国计量学院

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毕业设计（论文）外文翻译

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专业：法学

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Evasion of Law and Mandatory Rules in Private International Law 指导老师：

系：人文与法学

2013年月日

外文文献原文

Evasion of Law and Mandatory Rules in Private International Law

J.J. FAWCETT

Cambridge Law Journal, 1990, 49(1):44-62

Source: Cambridge Journals，

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 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 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 EV ASION

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 goods.Of 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, i.e. 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 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 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, i.e. Scots law. The private international law rule was not