第三章 国际私法的历史.ppt

Bartolus and Statutists ??Bartoluss method of resolving conflicts was based on a simplistic classification of local laws (statute) into two categories: real or personal. Real statutes were those that operated only within the territory of the enacting state but not beyond. In contrast, personal statutes operated beyond the territory of the enacting state and bound all persons that owed allegiance to it. Bartolus thought that this classification could resolve all potential conflicts because all statutes, both domestic and foreign, belonged to either the one or the other category, leaving neither gaps and doubts. Savignys contribution Savignys contribution was both constructive and decisive. Savigny rejected the statutist doctrine, but unlike Wachter , he rejected the unilateral approach and the primacy of the lex fori. Instead Savigny adopted and perfected the bilateral choice-of-law approach which up to that time was badly losing the competition with the unilateral approach. Rather than focusing on the conflicting laws and trying to ascertain their intended spatial reach, Savigny began his analysis from the opposite end. He focused on disputes on disputes or legal relationships and then sought to identify the state in which each relationship has its seat or in whose legislative jurisdiction it belongs. He divided the field into broad categories corresponding to the major divisions of private law (family law, successions, property, contracts, torts. etc.) and then, through connecting factors such as domicile, situs, or the place of the transaction or event, identified those inherent characteristics of each relationship that place its seat in one state rather another. ?? Savigny argued forcefully that the objective of these rules should be to ensure international uniformity of decisions regardless of forum. Indeed, in Savignys cosmopolitan and universalist milieu, there are no room for forum protectionism; private international law should not be concerned w