On The Protection Of The Weak In The Application Of Foreign Marriage And Family Relation Law

Since the 1948 "Universal Declaration of human rights" published, human rights concepts, all social circles have begun to re-examine their own academic "fairness and justice" and to prove. Scholars began from the previous focus on "formal justice" to "substantial justice", by the end of twentieth Century, the academia in the development of private international law, international society of private international law of the emergence of a new leap, the representative is the American scholar lafflar is proposed for better legal claims, "he thought should be justice, goodness and morality of these ideas into the conflict areas. Since then, the private international law circles from the beginning of the traditional pursuit of" conflict justice "to" how to achieve the goal of the transformation of substantive justice ", the one one straight as subjects of rights by academia, protection of the interests of the weak is" justice " The proper meaning. The interests of the weak reflects the cognitive social morality and human rights consciousness, people are beginning to realize that the individual in the physical, economic conditions, differences in social life, so that "everyone is equal before the law" is the basic principle to the essence must be reflected in the relevant legislation to give the weak tilt protection sure. The weak party, said Shi meter to protect the interests of international trade in the international trade law as early as<> anthology, is not only the needs of justice, but also the developed countries need self interests. Many scholars in promoting the research and demonstration under the international law circles have in their conflict rules legislation the introduction of the principle, some take it as a basic principle guiding our country's legislation.Data show that in twenty-first Century, every year there are approximately 400 thousand expatriates and Chinese marriage, foreign marriage cases in the case of the significant proportion of private international law, personal interests and social public interests and the parties of the marriage and family relations are closely related. But foreign marriage and family relations has the special status in the private international law in foreign-related civil and commercial relations that relates to social ethics, social ethics, foreign marriage and family in the weak are often elderly, minors and other physical, economic ability weak groups, their interests should receive special attention. Study on the protection of the interests of the weak foreign marriage and family relationship problems, therefore, is the pursuit of "essence justice value orientation, is essential in our socialist legal system.The study on this issue at present is mainly for the large private international law, such as professor Li Shuangyuan's "private international law", in his book for the first time to protect the interests of the weak principle as a basic principle, and as professor Qu Guangqing, he read from the socialist law governance and harmonious world perspective the basic theory of interest protection. But their research in China before the law applicable law><, lack of some practical significance. Professor Wang Jinlan of Anhui University School of law in the law applicable law will be implemented<> occasion of the legal application of the draft law on marriage, respectively, the foreign relations between husband and wife foreign divorce and foreign, parent-child relationship and other aspects of the detailed analysis and demonstration, and draw up a draft proposal, divide the substance and form elements in the relationship between division of legislation, involved in Outside the wedding presents the public order principle and consular marriage, are in line with the international trend of the legislation of the private international law that has epoch-making significance, has made important contributions to improve the law applicable law of our country. These studies for the protection of the weak in China to further improve has a role in promoting, but they mostly study focus on the relatively large area of private international law, there is no specific foreign marriage and family law research field, while the lack of current international legislation comparison some advanced countries in international private law to protect the interests of the weak legislation present situation analysis, there is no way of protecting the interests involved in the conflict in the international standard. In our country, for the weak area of foreign relations of marriage and family law to protect the interests of research is still blank.Therefore, based on the above problems, by using the value analysis method, comparative study method, empirical research method demonstration method, from the perspective of private international law in the foreign relations of marriage and family, the concept of marriage and family relations in the analysis of its characteristics, the definition of international private law is derived and the area of foreign marriage and family. The theoretical value and analysis of protection the interests of the weak as a basic principle, separately from the value connotation, three different aspects of the construction of the socialist legal system and value orientation are discussed, for the interests of the weak in private international law principles to be set as a basic principle to provide theoretical support. Then introduce the world about protecting the interests of private international law in foreign-related law marriage and family relationship in the application of legislation, and unique from the "favorable" principle, principle of "most significant relationship", "autonomy "Principle as well as the divorce relief, such as multi angle analysis, summed up the international on the protection of the interests of the weak in a variety of ways, and one by one the legal provision for example explanation, the perfection of China's foreign-related marriage and family law put forward suggestions. The analysis of the preceding results prove, trying to explore some conform to the trend of international legislation and scientific legislation suggestions, hope to China's foreign-related marriage and family in the field of protection of the interests of the weak benefit.