最新Chapter-2-the-sources-of-International-Private-Law.pptVIP

【Source】河流的源头，引申为来源、出处、原始资料，提供资料的人。【渊源】水源，事情之本源。 【资料】《奥本海国际法》（第8版）关于法律渊源的比喻：“渊源的意思是指泉源或者水源：它应该解释为一股水从地面流出。当我们看到一股水而想要知道它从哪里来的时候，我们就逆流而上，直到它从地面自然流出的地方。我们说，那个地方就是这股水的渊源。 【法的渊源】简称法源，一般是指法律规范的创制及其表现形式。 【国际私法的渊源】国际私法规范的存在及其表现形式。 Company Logo 1 Resource of domestic Law National laws are the primary sources of private international law. However, international private law is also embodied in treaties and conventions (for example, the Hague 海牙Conventions on Private International Law), model laws, legal guides, and other instruments that regulate transactions. Company Logo Domestic statute Law. domestic Law Domestic Case law Company Logo 1.1?Domestic statute Law In the civil law system countries, domestic statute law is the most important source in their practice and theories. Bavarian巴伐利亚 Codification of 1756 – the first provisions German Civil Code of 1986 Company Logo 立法的主要模式 分散立法式 专章专篇式 单行立法式 Company Logo New Characteristics First, Modern legislation of private international law is more expanded in scope and more elaborate in specific provision. Second, more and more countries favor comprehensive codification of private international law which aims at systematic completeness. Thirdly, the conflict rules in modern legislation are more “soft” or “flexible”. Company Logo 1.2?Domestic Case law what is a” case”, as one of the sources in private international law? Here a case means not the dispute per se, but a prior judgment made by a court and published in law reports. A case not only has binding force on the parties to the dispute where the case arises from but also constitute a precedent 先例binding on the later court that hears a similar case with the same substance. That is what we call “the doctrine of precedent”, which is the essence and foundation of the Anglo- American英美 legal system. Company Logo 1.2?Domestic Case law Compared with the Anglo- American英美 legal system, in which cases are the main sources of private international law, the cases in the contin