试析学说在国际私法中的作用

学说,作为学者们的学术观点、理论主张,一般不具有法律约束力,因此不能成为法律渊源。然而,在国际私法中,学说却占有重要地位。国际私法的历史表明:14～18世纪国际私法仅处于"法理学与科学"的阶段,即表现为学说法。即使18世纪以后开始出现制定法,学说对各国的立法与司法实践仍有很大影响。中国尽管不承认学说作为国际私法的渊源,但国家鼓励、支持学者们对法典作出努力。

Analysis of function of the theory in international private law

Theory isn't the sources of law because they act as academic view and theory of scholar doesn't has legal binding force in general,but they play an important part in intertaional private law.The history of international private law suggests that the international private law is in'urisprudence and science'period from the 14th to 18th century. That is the theory law.Even after the law-making appeared in the 18th century,theoriesy has agreat influence on legislation and judicial practice of various countries.Although theory isn't the source of law in our country,the country encourages and supports the scholars'study on the theory of private international law.