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目前,世界上存在两大国际私法体系:欧洲传统国际私法和美国现代冲突法。两大体系的根本区别在于: 欧洲传统国际私法一般以固定“规则”的形式出现,而美国现代冲突法则表现为各种解决法律冲突的“方法”。从历史发展进程来看,自六七十年代,传统的冲突规则在美国遭到了各种激进的现代冲突法学说的猛烈冲击,几乎陷于难以“求生”的境地,即我们所说的美国冲突法革命,这场法律革命对于当今中国冲突法立法有什么样的启示呢?笔者做一小小的探究后提出了自己的一些建议。
At present, there are two major systems of private international law in the world: the European Private International Law and the United States Modern Conflict Law. The fundamental difference between the two systems lies in the fact that the traditional private international law in Europe generally appears in the form of a fixed “rule,” whereas the law of modern times in the United States shows various “methods” for resolving legal conflicts. From the perspective of historical development, since the 1960s and 1970s, the traditional rules of conflict were violently attacked by various radical theories of modern conflict law in the United States and were almost stuck in a situation where it was hard to survive. That is, what we call the U.S. Conflict Law Revolution, what is the enlightenment of this legal revolution to the legislation of China’s conflict-of-laws now? After making a small inquiry, the author put forward some suggestions of his own.