On Foreign Divorce Jurisdiction And Recognition Of Foreign Divorce Judgments

With the development and change of the system of society and economy and politics, the institution of law to adjust divorce relation should be improving gradually, so every country protects the benefit of divorce parties and the benefit of society. Because of the difference of provisions of divorce law, what produces the conflict of divorce law arouses the attention of international communities and some countries, so that the change and development of institution of divorce law of international communities and some countries will also be gradually integrated. In the dissertation ,the author will combine legislation and practice of international communities and some countries to study two parts of institution of divorce law——the foreign divorce jurisdiction and the recognition of foreign divorce judgments. At the same time, the author sets forth and analyses them basing on the relative legislation and practice of our country, and puts forward a rationalization proposal.The dissertation consists of four chapters, in all over 36,000 words. The core idea of each chapter is as follows:In Chapter I, the author sets forth the concept and feature of foreign marriage, and states the concept of foreign divorce and status quo about foreign divorce of our country. Then the author states several main questions related foreign divorce, from which the author extracts two questions——the foreign divorce jurisdiction and the recognition of foreign divorce judgments to discuss their importance, and they are thought that they are the beginning and the end of divorce proceedings: Jurisdiction is like a stepping-stone to success to open the door of foreign divorce proceedings for foreign divorce parties. And, only when the judgment of foreign divorce gets recognized, foreign divorce gets full stop. In Chapter II, the author sets forth the foreign divorce jurisdiction, and discusses the causes of the conflict of foreign divorce and its embodiments: Concurrent jurisdiction is the direct embodiment of the conflict of jurisdiction; concurrent proceedings are indirect embodiment of the conflict of jurisdiction, so that the author quotes and analyses them basing on the legislation and practice of international communities and some countries.In Chapter III, the author analyses positively the recognition of foreign divorce judgments combined the analysis of the legislation and practice of international communities and some countries with cases. In the process of uninterrupted growth of the recognition of foreign divorce judgments of every country, many of them provide for conditions of examination but difference from it, there is another practice, like France: In France, courts will unrestrictedly recognize the judgment if there is recognition of law relation of simple status of foreign divorce parties, and there is no need of execution of court of France. But some recognitions of judgment of child custody, property division and so on related foreign divorce needs the execution of courts in France, so that the recognitions could get recognized.In Chapter IV, the author gives full details of discussion of the legislation and practice of the jurisdiction of related foreign divorce of our country, the parallel proceedings caused by the conflict of jurisdiction and the recognition of foreign divorce judgments, at the same time, the author points out the lack of them and puts forward rationalization proposals: the foreign divorce jurisdiction of our country should not be only in connection among the citizens of China, and the divorce proceedings among foreign citizens, if the proceedings would be taken in China, courts of China should exercise the foreign divorce jurisdiction basing on the practice and concrete conditions, not constantly refusing to exercise the foreign divorce jurisdiction , which would be convenient for foreign citizens who work in China to take proceedings;courts should relieve some attitudes towards the recognition of related foreign divorce judgments of in China, and courts would unrestrictedly recognize the judgment if there is recognition of law relation of simple status of foreign divorce parties, which is different from some recognitions of judgment of child custody, property division and so on related foreign divorce. To do that is conducive to develop the recognition of related foreign divorce.The twinkle light of the dissertation is using the case analysis methodology and using the comparative analysis methodology as instruction to overall investigate the foreign divorce jurisdiction and the recognition of foreign divorce judgments basing on the predecessors'accomplishment of research. A second time, the dissertation discusses the legislation and practice of international communities and some countries, and compares and analyses their similarities and differences, striving for the further development of the study of foreign marriage. A third time, the dissertation gives full details of analysis and discussion of the status quo of the foreign divorce jurisdiction of our country, parallel proceedings and the recognition of foreign divorce judgments, basing on the related legislation and practice of our country, at last, the author puts forward rationalization proposals:1. Courts of our country should exercise the divorce jurisdiction that is involved with foreign citizens who are parties to a divorce proceeding in China. 2. Courts of our country could adopt different attitude towards related the recognition of foreign divorce judgments. Courts would unrestrictedly recognize the judgment if there is recognition of law related simple status of foreign divorce parties, but they would recognize the recognitions of judgments of child custody, property division and so on related foreign divorce according to Chinese law and judicial procedure. So, there appears an open and free situation in recognition of foreign divorce judgment.