Research On The Conflict Of The Cross-strait Marriage Laws And Its Solutions

With the development of cross-strait relations, solving the conflict of the cross-strait marriage laws has become an important issue of the interregional conflict of law in China. On the basis of the practical issues, this dissertation compares the cross-strait marriage laws, analyzes the causes of the conflict and puts forward ways of solving the conflict. The whole dissertation consists of three parts: Part one is the summing-up of the cross-strait marriage laws, sources of the conflict. Part two is the comparison of the cross-strait marriage laws, manifestations of the conflict. Part three is the coordination of the cross-strait marriage laws, solution of the conflict.In part one, starting with the summing-up of the cross-strait marriage laws(source of the conflict), the author explains the backgrounds and causes of the conflict of the cross-strait marriage laws, the significance of researching on the cross-strait marriage laws and the nature of the conflict in the marriage laws and its main solutions. Due to the different nature of the society and legal systems and ideas causes by historical reasons, there are many legal contradictions and conflicts in the cross-strait marriage and family relations. Therefore, it is a very important issue to research on the marriage laws in the cross-strait relations,and to solve the legal conflicts in the cross-strait marriage laws. In this way, the legitimate interests of the people on both sides can be effectively protected and the normal exchanges between the people on both sides can be promoted. Meanwhile, they are also the important issues in solving the interregional conflict of laws. The author views that the cross-strait legal conflict is a special interregional conflict of laws. In part two, the author compares the cross-strait marriage laws, manifestations of the conflict. Cross-strait betrothal systems, marriage systems and divorce systems are discussed respectively. The author views that the attitude towards betrothal of the mainland law embodies the spirit of free marriage as well as the respect for folk custom, which is beneficial to the gradual development of social mode and legal concepts. Although the marriage law of Taiwan takes the old tradition into consideration and objectively plays a role in dealing with marriage disputes, it gives the impression that betrothal is lawful and is detrimental to the implementation of the free marriage. Due to the different politics, economy, culture and education between the mainland and Taiwan, there are also some differences in marriage documents. Taiwan's legislation not only takes in a lot of legislative spirits of the West, but also retains many feudal traditions. Taiwan's civil law draws some new legislative techniques of the western countries, and its stipulations in terms of marriage are more accurate and consummate. The stipulations of the mainland law seem more principled, broader and not comprehensive enough. The mainland grants a divorce on the basis of the emotional breakdown which is irrecoverable. Taiwan divorce system depends on causation. As long as the statutory conditions are met, divorce should be granted by the court. Compared with Taiwan, the mainland is more careful in terms of divorce and pays more attention to the protection of family stability.Part three is the core of the whole dissertation, which reflects the author's coordination of the cross-strait marriage laws (solution of the conflicts). This part consists of five aspects. Firstly, solving the cross-strait marriage conflicts must observe the following principles: the one-China principle, the principle of one country and two systems, the principle of equality and mutual benefit and appropriate principles. Secondly, both common personal law and law of the court should be adopted in cross-strait conflict of marriage law. But due to the unconnectedness of nationality in interregional conflict of law, nationality should be substituted by"regionality". Cross-strait marriage and its validity can be applied by the common law of the district, common law of the domicile and law of the habitual residence of both sides. If there is no common law of district, domicile and habitual residence, the law of the place where an act takes place should be applied. Therefore, the solution of the cross-strait marriage conflicts in the first place should be applied by the common laws of district, domicile and habitual residence of both sides. If there are such laws, the law of the place where an act takes place should be applied. In this way, the conflict in the cross-strait marriage could be effectively solved. Thirdly, in the conflicts of cross-strait marriage, the marriage is valid as long as it accords with the law of the place where they get married or with the national law, domicile law and the law of habitual residence of any party. As for formal requiments, they are unconditionally adjusted by the law where an act takes place or personal law of any party. The lenient requirements make it easy for the availability of the litigant's formal requiments. As for the substantive conditions in the cross-strait marriage conflict, the law where an act takes place should be adopted, and the mandatory provisions of the litigant's personal law should be taken as the restrictions in order to avoid the evasion of law. Fourthly, the author puts forward the following points of view in the solution of the cross-strait marriage conflicts. First, the general standard for the formal requirement of the cross-strait divorce is either the personal law or the local law which is in favor of the marriage dissolution. Second, the substantive conditions of divorce can be applied by the common district law of the litigants. If the two parties don't belong to the same district, the substantive conditions can be applied by the common law of the domicile or law of the habitual residence. If there is no common domicile or habitual residence, the law of the place where marriage is dissolved is applicable. Third, as for the validity of divorce by agreement, the law which the litigants are agreeable to and choose explicitly is applicable so as to respect for the willingness of the litigants. If the relevant laws are not applicable, the law which is in favor of the marriage dissolution should be the applicable law. Fifthly, the author discusses the ways of solving the cross-strait marriage conflicts. The basic connecting point of private international law is"nationality". But when solving the conflicts within districts, the basic connecting point should be the"domicile"or"habitual residence", that is, the different districts should be emphasized. The author views that the private interregional law should be emphasized. The author views that the private interregional law should be divided out of the private international law for constituting the private interregional law. In a long run, unifying the substantive law is an ideal way to solve the cross-strait marriage conflicts. We can also say that it is also the most thorough and effective way. The"demonstration law"can also be fully taken into consideration, thus greatly reducing the difficulties and restrictions in solutions of the cross-strait official governments. The author views that at the present stage, starting from the reality of the cross-strait marriage conflicts, the best way of solving these conflicts is precaution. In this way, the cross-strait legal resources can be saved. The legitimate rights of the cross-strait marriage parties can be effectively protected. At the same time, both the mainland and Taiwan should admit each other's regulations of legal conflicts and carry out each other's judgments conditionally.