德国国际私法法典化.ppt

20世纪60年代以来的德国国际私法法典化 报告人：葛仲彰 Introduction german PIL EGBGB(1896) RAG(1979) EU provisions Introduction Historical development EGBGB (1896) Rechtsanwendungsgesetz (RAG) (1979-1990) EU provisions Rome convention Rome I regulation Rome II regulation The EGBGB was enacted in 1896，and the codification of German PIL at present can be found by and large in this Act. RAG was implemented in 1979 by the German Democratic Republic and was revoked in 1990. Rome I Regulations compelled germanto revoke the PIL rules on contractual obligations Rome II Regulations compelled German to reduce the scope of application of the rules on non-contractual obligations General methodology Legal Certainty and Flexibility Generally , germanPIL sticks to the legal certainty rather than the flexibility. This dues to the Savignyan thinking. As a exception, however, the soft or composite connecting factors will be employed as connecting factors of last resort. General methodology Issue-by-Issue Choice and Dépe?age dépe?age is not a dominant issue but not ruled out in the germanPIL In the field of contract , dépe?age is allowed for whether party’s choice of law exists or not. With regard to matrimonial property consisting of real estate , parties’ choice of law provides the ground for a possible, yet very restricted and refined dépe?age. General methodology Conflicts Justice versus Material Justice In german PIL, the law has been sticking to the conflicts justice rather than the material justice. There are no provisions that permit the courts to consider the content of the law and decide the governing law depending on it. Nonetheless, the courts show a certain homebound trend. But this is not for the reason of material justice but for the reason of easing the courts’ burden by applying the lex fori. General methodology Unilateral Rules and Rules of Immediate Application Eingriffsnormen There are no general rule on Eingriffsnormen in EGBGB. Unilateral