German Private International Law: Theory, Methods, and Changes in Legislation

Author: Du Tao
Publisher:
Publication Date: 2006-08-01
Features: This book studies the development of German private international law from the "Conflict of Laws Doctrine" in the 15th century to the early 21st century, focusing on the evolution of its theoretical doctrines and legislative developments. The book aims to provide new "growth points" for the further development of Chinese private international law through an introduction and analysis of its history, while also serving as a "reference framework" for future legislative comparisons and learnings. The establishment of modern legal systems in China has been greatly influenced by German law. Chinese law, particularly private law including private international law, is generally considered part of the civil law system and leans toward the German branch of it. If we compare Chinese works on private international law with those of Germany, the similarities are striking, not only in terms of systemic structure but also in specific concepts and legal terminology, even in the name "private international law." China is currently drafting the "Civil Code." It is likely that future Chinese civil law will adopt or heavily draw on the German model. Since civil law is the focus, as the implementing law of the Civil Code, private international law should follow suit. After China joined the World Trade Organization, civil and commercial exchanges with foreign countries will undoubtedly accelerate, giving private international law a broader role. However, there are still many gaps in China's legislative framework for private international law, and existing laws require significant improvements. The compilation of China's Civil Code is underway, and it is expected that the codification of private international law will also follow soon. The Chinese Society of Private International Law has long been dedicated to researching the legislative aspects of Chinese private international law and published the "Model Law on Private International Law of China" in 1999, aiming to set a precedent for future legislative efforts. As a necessary preliminary step for codification, strengthening research on foreign legislative frameworks, theories, and practices of private international law is of utmost urgency. China has already made certain achievements in this regard. However, despite the profound influence of German private international law on China, Chinese scholars have largely neglected its introduction and study since the founding of the People's Republic of China. Therefore, this book attempts to fill this gap and hopes to serve as a reference for future legislative efforts in China. The book divides the development of German private international law into three stages: the "Conflict of Laws Doctrine" period, the "Modern Private International Law" period, and the "Contemporary Private International Law" period. Both the "Modern Private International Law" and "Contemporary Private International Law" periods fall under modern private international law. Of course, this division is merely for research convenience. Accordingly, the book is divided into three parts, totaling twelve chapters. Part I covers the "Conflict of Laws Doctrine" era, including chapters 1, 2, and 3. Part II covers the "Modern Private International Law" period, including chapters 4, 5, 6, 7, and 8. Part III covers the "Contemporary Private International Law" period, including chapters 9 to 12. The book begins by introducing the historical development of German private international law from the 15th to the mid-19th century. Since private international law was primarily a scholarly discipline before the great legislative era of the late 18th and early 19th centuries, this section is presented in chronological order by scholars (Chapter 2). Compared to countries like Italy, France, and the Netherlands, German private international law developed relatively late. Therefore, to properly understand the "Conflict of Laws Doctrine" in Germany, it is necessary to introduce the theoretical developments of other countries' private international law before this (Chapter ). It was not until the 16th century that German scholars specializing in legal conflicts emerged, and their theories were all part of the "Conflict of Laws Doctrine." German's "Conflict of Laws Doctrine" had little originality, largely inheriting the theories of Italian, French, and Dutch scholars. However, individual scholars like Herbart held a unique position in the history of private international law. Herbart wrote the world's first monograph on conflict of laws. But it was German scholars who ultimately ended the "Conflict of Laws Doctrine," with Schopenhauer, Weichardt, and Savigny as its terminators. Schopenhauer and Weichardt were transitional figures from the "Conflict of Laws Doctrine" to modern private international law theory, but their theories had a profound impact on later developments (Chapter 3). Schopenhauer first coined the term "private international law," while Weichardt's theory pioneered the "nationalist" path in private international law. Unfortunately, neither established a new theoretical system for private international law. Savigny is widely recognized as the founder of modern private international law theory. Thus, Savigny's private international law theory is a key focus of this book (Chapter 4). Savigny proposed the "Theory of the Proper Law of the Legal Relationship," marking a revolutionary turn in the methodology of private international law and earning him the title of the "Copernicus of Private International Law."