论美国传统冲突法的本土化及其对中国的启示

美国冲突法的本土化经历了特色鲜明的两个阶段。斯托雷以其自然法理论为指引引进了胡伯的国际礼让说,奠定了美国冲突法的发展根基。在形式主义法学影响下,比尔以《美国冲突法重述(第一次)》为主要载体,以既得权理论为根基,进一步发展了美国的冲突法。中国国际私法的发展应充分借鉴美国冲突法本土化的有益经验立足国情、引进创新,继承传统、与时俱进,理论先导、实践检验。

The Localization of American Traditional Conflicts Law and its Implications for China

The process of the localization of American traditional conflicts law has experienced two characteristic phases. Story introduced the International Comity Doctrine of Huber with the guide of his jurisprudence of natural law, and established the basis of American conflicts law. During the period when formalism was popular, Beale developed American conflicts law with the form of Restatement of the Law of Conflict of Laws (First), based on his theory of vested rights. The development of China's Private International Law should fully absorb the useful experience of the localization of American conflicts law by introducing foreign rules and theories and innovate them on the basis of its situations, and by inheriting traditions and developing them with in accordance with changes of the times.