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

Author: Du Tao
Publisher:
Publish Date: 2006-08-01
Features: This book studies the development of German private international law from the "Conflict of Laws Theory" 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 and a "reference framework" for future legislative comparisons and through an introduction and analysis of the history of German private international law. 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 civil law. If Chinese works on private international law are compared with German works, the similarities are striking, not only in terms of systemic structure but also in specific concepts, legal terminology, and even the name "private international law." China is currently drafting the "Civil Code." China's future "Civil Code" is likely to adopt or heavily draw on the German legal model. Since the Civil Code is 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 have been developing at an even faster pace, and private international law will have a broader scope of application. However, there are still many gaps in China's legislative framework for private international law, and existing laws also have many areas that need improvement. The compilation of the Chinese Civil Code is underway, and it is believed 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 in China. As a necessary preliminary step for codification, strengthening research on foreign private international law legislation, theory, and practice is imperative. China has already made certain achievements in this regard. However, despite the significant influence of German private international law on China, Chinese scholars have largely been silent on its introduction and research 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 Chinese private international law. The book divides the development of German private international law into three stages: the "Conflict of Laws Theory" 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 the convenience of research. Accordingly, the book is divided into three parts, totaling twelve chapters.
Part I covers the "Conflict of Laws Theory" period, 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 first introduces 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 Theory" 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 Theory." German "Conflict of Laws Theory" had little originality, essentially being a continuation of the theories of Italian, French, and Dutch scholars. However, individual scholars like Herbart also held a unique position in the history of private international law. Herbart wrote the world's first monograph on conflict of laws. However, the "Conflict of Laws Theory" was ultimately ended by German scholars—Schroeder, Weichert, and Savigny. Schroeder and Weichert were transitional figures from the "Conflict of Laws Theory" to modern private international law theory, but their theories had a profound impact on later developments (Chapter 3). Schroeder was the first to coin the term "private international law," while Weichert's theory pioneered the "nationalist" approach 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. Therefore, 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." The book conducts a systematic study of German private international law primarily from the perspectives of theory, law, and historical change.