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

Author: Du Tao
Publisher:
Publishing Date: Not available
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 through an introduction and analysis of the history of German private international law, while also serving as a "reference framework" for future legislative comparisons and. 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 compared with German private international law literature, the similarities between the two 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 China's future "Civil Code" will adopt or heavily draw on the German legal model. Since civil law is the case, 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 scope of application. However, there are still many gaps in China's private international law legislation, and existing laws require significant improvements. The compilation of China's Civil Code is underway, and the codification of private international law is expected to follow shortly. 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 to codification, strengthening research on foreign private international law legislation, theory, and practice is of paramount importance. 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 the introduction and study of German private international law since the founding of the People's Republic of China. Therefore, this book seeks to fill this gap and hopes to serve as a reference for future legislative efforts in Chinese private international law. This 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. The "Modern Private International Law" and "Contemporary Private International Law" periods both 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" 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 century 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 German "Conflict of Laws Theory," 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, 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. However, the "Conflict of Laws Theory" was ultimately terminated 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 first coined 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 turning point in the methodology of private international law and earning him the title of the "Copernicus of Private International Law History."