摘要
智能机器人之所以被认为兼具"人""物"属性,本质原因在于智能机器人的智能性.但若仅因智能性便将智能机器人认定为"人",难免会导致"人究竟有多智能"以及是否存在一个标准去判断人类的智能性的问题.在人工智能和生物科技的高速发展下,人和物有了相互转化的可能,应积极而又审慎地反思智能机器人有可能具有人的主体地位和物的客体意义,并采取具有一定前瞻性且务实的态度去解决由此产生的一系列新问题.高科技时代的到来将会给传统划分的"范围"带来巨大冲击,导致冲突规范类型化调整的困境.法律的目的永远在于坚守底线,而非定义极限.只有更新"范围",体系选法,才能拟定适宜的冲突规范,实现全球私法的有效治理.
The idea of conflict of law comes from Bartolus’the theory of statues.Bartolus starts from the nature of the statute,and divides it into“real law”and“personal law”.“Personal law”follows the person,regardless of where he is,and has extraterritorial effect.“Real law”has strict territoriality;regardless of the country or residence of the owner,lex situs should be applied.Whether an intelligent robot is to be identified as a person or a thing will affect the application of its conflict of laws rules,and will also lead to different governing laws.The essential reason why intelligent robots are considered to have the attributes of both persons and things is the intelligence possessed by intelligent robots.Since Pascal put forward the proposition that“man is a thinking reed”,intelligence seems to be the most distinctive feature that distinguishes humans from animals.However,if an intelligent robot is identified as a person only because of its intelligence,it will inevitably lead to thinking about how intelligent a person is and whether there is a standard to judge the intelligence of human beings.With the rapid development of artificial intelligence and biotechnology,this seems to make it possible for persons and things to transform into each other.We should actively and prudently reflect on the possibility that intelligent robots may become the subject status of persons and the object meaning of things,and adopt a forward-looking and pragmatic attitude to solve a series of new problems arising from it.The design logic of intelligent robots is based on a single architecture of“if-then”,rather than a“if-maybe”multi-valued structure.Its behavior patterns are all supported by algorithms written by humans.In the current context,robots still belong to things.The advent of the high-tech era will have a great impact on the traditional division of the scope of persons and things,leading to the dilemma of the adjustment of the typology of choice of law rules.The purpose of law is always to hold the line,not to define limits.The conflict of laws per se possesses a guiding function.It should reflect the distinct attitude of a country’s economy,politics,culture,science and technology in the process of globalization,and it is a window of the country’s display in the civil and commercial field and the degree of attention to the high-tech industry.Only by adding new scope and forming systematic choice of law rules can the appropriate conflict of law rules be formulated and the effective governance of global private law be realized.The conflict of law rules of the real right of the intelligent robot can be stipulated as the real right of it,and the parties can choose the applicable law of the real right by agreement,but it does not have the effect against the bona fide third party.If the parties have no choice,lex situs of the intelligent robot at the time of the occurrence of legal facts shall apply.However,according to the actual situation,if the location of the intelligent robot is not closely related to the case but is more closely related to another law,an exception may be made to apply the law more closely related to it.
作者
梅傲
Mei Ao(International Law School,Southwest University of Political Science and Law,Chongqing 401120,China)
出处
《浙江大学学报（人文社会科学版）》
CSSCI
北大核心
2022年第12期57-68,共12页
Journal of Zhejiang University:Humanities and Social Sciences
基金
教育部哲学社会科学研究后期资助项目(20JHQ073)
关键词
冲突法
智能机器人
物权法则
人物两分
涉外物权
范围
类型化调整
conflict of laws
intelligent robot
property law
real law/personal law
foreign-related property rights
scope
adjustment of the typology of choice of law rules
作者简介
梅傲,(https://orcid.org/0000-0002-6499-074X),男,西南政法大学国际法学院副教授,法学博士,主要从事国际私法研究。
