国际司法重点内容pp新t第二章.pptVIP

第二章 国际私法的历史 History of PIL;唐朝《永徽律》：“诸化外人同类自相犯者，各依本俗法；异类相犯者，以法律论”;一、罗马时代的“万民法”（公元前7至5世纪）;三、属地法时代的“极端属地主义” （公元10世纪后）;第二节 国际私法学说史;（二）代表人物和主要观点 ;巴托鲁斯提出的重要冲突法规则：;（三）影响和评价;Bartolus’s 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. ;二、法国的法则区别说 （一）历史背景;（二）代表人物和主要观点;达让特莱的属地原则;（三）影响和评价;三、荷兰的国际礼让说（一）历史条件;（二）代表人物和主要观点 ;（三）历史评价;Comity was defined as something between mere courtesy and a legal duty. The most famous of these authors, Ulricus Huber, postulated the following three axioms: The laws of each state have force within the territory but not beyond. These laws bind all those who are found within the territory, whether permanently or temporarily. Out of comity, foreign laws may be applied so that rights acquired under them can retain the their force, provided that they do not prejudice the state’s power or rights.;四、萨维尼的“法律关系本座说” （一）历史条件;（二）生平简历和主要观点;法律关系本座说内容示意图;（三）影响和评价;Savigny’s contribution was both constructive and decisive. Savigny rejected the statute doctrine. Instead Savigny adopted and perfected the bilateral choice-of-law 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 or legal relationship and then sought to identify the state in which each relationship has its “seat”.;五、戴西的“既得权说” （一）历史条件;（二）主要观点;（三）影响和评价;Dicey’s theory of vested or acquired rights is based on the principle of territoriality. A judge cannot directly recognize or sanction foreign laws, nor can he directly enforce foreign judgments, for it is his own territorial law which must exclusively govern all cases that require his decision. ;