A Research On Several Issues On The Law Applicable To Foreign-related Marital Property Relationship

Along with the development of global economic integration, the flow of people around the world is more and more frequent, the emergence of a large number of transnational marriage and common phenomenon of personal and family’s movement lead to some results that marital property may be scattered all over the world and the conflicts of law about marital property relationship is inevitable. These problems bring huge challenge to the law applicable to marital property relationship. Because the property relation between husband and wife is not only the core and foundation of the family property relations, it may also have direct relation to the transaction security of the third person, thus influence external social and economic order. Therefore, more and more countries pay attention to the law applicable to marital property relationship. China also introduced the < Law of the Application of Law for Foreign-related Civil Relations of the People’s Republic of China> in 2011 and the new law has clearly stipulated the law applicable to the marital property relationships, but there still exist some imperfect and unsatisfactory places. Although the relevant provisions of new law comply with the development trend of international private law, there are still some specific provisions which need to be perfect and interpret further.This paper is divided into three chapters. The main contents include: the overview of conflicts of law on foreign marital property relationship; four core problems on the law applicable to foreign marital property relationship; the deficiency and perfection of the law applicable to the foreign marital property relationship in China.The first part is about the general introduction of the legal conflicts of marital property relationship, including: the concept and characteristics of foreign marital property relationship, the causes and solutions of legal conflicts.The second part mainly discusses four core issues on the law applicable to foreign marital property relationship: the selection of objective connection point of lex personalis, party autonomy and its restrictions, the unity theory and scission theory and the movable and immovable theory of applicable law. This paper analyzes theories, legislations and judicial practice of civil law system and common law system on four problems above to summarize some useful conclusions.The last part is to put forward some suggestions based on conclusions of four issues to perfect our legislation. The old connection point—lex domicile needs to be kept in our lex personalis because of its special value. We need to add some restrictions on party autonomy to avoid being abused, make further explanation of the concept “main property” and adopt limited unity theory. In addition, we may admit that the applicable law is movable and protect vested interest which is subjected to former law.