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Study On The Conflict Of Marriage Law Between The Mainland And Hongkong--From The Point Of View Of Proper Law

Posted on:2005-05-01Degree:MasterType:Thesis
Country:ChinaCandidate:H Y TianFull Text:PDF
GTID:2156360122499389Subject:International Law
Abstract/Summary:PDF Full Text Request
Interregional conflict of law is a main issue of the private international law. After the mainland regained the sovereignty of Hong Kong, this issue becomes a pressing one. Though the academe have gone on studying and have made some progress on it before the return of Hongkong, they can't find a better way to solve the conflict we faced in the true-life, and the discuss about the solution are in the scope of established pattern and have no innovation. From the point of the legal education, almost every textbook of private international law treats of this issue, but these introduction just concentrate on the main points and lack profound theoretic analysis, especially in the field of marriage law. These books just tell the application of marriage law on the interregional conflict in a fixed pattern, so they can't lead to think further. In our country marriage and family relation has a special status, added with the historical and cultural reason, the conflicts show a characteristic different from other countries. The author will try to pay more attention to the interregional conflict of marriage law in the following aspects: Part one: the special interregional conflict of law based on the implement of "one country, two systems" in China, it consists of two portions.Firstly, the author discusses the traits of the interregional conflict of law brought by the return of Hongkong. From the point of view of history the relationship between the mainland and Hongkong comes through three phases: "unification", "development severally", "confliction of law". The traits lie on a kind of law conflict happened in a peculiar unitary state with different social system, but it is also a conflict of two legal systems and now it has a trend of expansion.Secondly, crying for the interregional marriage law. Because high frequency of civil acts in these two regions, marriage is going to get a leading role. But the conflicts in different lays bring much inconvenience to two parties, it is very important to solve the conflict of marriage law rightly.Part two :Status in quo of the law conflict between mainland and Hongkong, and the solution pattern to the current interregional conflict, also two portions.Firstly, status in quo of the marriage conflict in the two places. In the past the research focus on the conflict of substantial law including marriage system,divorce system ,marriage validity ,marriage property and etc. The author also mentions the conflict of the conflict law of two regions Secondly, the solution pattern to the current interregional conflict. In the late research the solutions are "application of private international law by analogy","making respective interregional private law ","making collective interregional private law"and"making collective substantial law". But the ultimate dispute is how to use these solutions, which one is better and more feasible. This part will lay the foundation for the next.Part three:"The theory of proper law", also two parts.Firstly, introduction to the theory of proper law. This theory is a main theoretic problem to which many scholars in the field of private international law paid attention. At the beginning the author introduces the noumenon of proper law. The so-called noumenon in philosophy of law is to seek for the ultimate existence hiding in the back of the law, that's lex naturale. So the proper law is lex naturale in the field of private international law, or is based on it. The conception builds up a principle of application to solve the law conflict. The core or hypostases of the principle is appropriate,felicitous and proper in choosing or applying law. The apocalypse of proper law is that crown all possibility of substantial law's development and inevitability of conflict law's adjustment. Thereby unilateral way isn't a saving grace.Secondly, introduction to the function of proper law. (1)proper law,(2)proper law captains all theories,systems and resources of private international law,(3)in historical effect proper law pro...
Keywords/Search Tags:Hongkong--From
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