On The Legislation And Practice Of Recognition And Enforcement Of Foreign Divorce Judgments In China

With the free flow of natural person around the world and the increasing number of transnational marriages,the divorce judgment issued by the court of one country has been the trend of transnational circulation.Foreign marriages in China are also increasing dramatically,and the number of cases that the litigant apply to the courts of our country for recognition and enforcement of foreign divorce judgments is also on the rise.This requires our government to strengthen and improve the legislation and justice.There are two types of foreign divorce decisions in practice,One is the simple dissolution of the marital relationship of the identity of the judgment;The other is a comprehensive judgement which includes the division of property between husband and wife and the maintenance of children.From the point of view of the legislative provisions,the provisions on the recognition and enforcement of foreign divorce judgments in our country mainly focus on the civil procedure law and its judicial interpretation,which adopted on"Regulations of the Supreme Court in 1991" in 1991," Regulations of the Supreme Court in 1999"in 1999,and the Supreme Court's related approval.According to the relevant provisions,only a final divorce judgment issued by a foreign court with jurisdiction,and in conflict with a divorce judgment made by the same party in a third country that is not recognized by our country or first recognized by our country before,Without violating the "due process”of the trial and the public order of our country,and the application conforms to the procedural provisions of our law,the judgment can be recognized by the courts of our country.lt is worth noting that our country does not recognize the divorce judgment except for the dissolution of marriage relationship at present,therefore,the implementation of foreign divorce judgment can not be discussed.From the point of view of judicial practice,the foreign divorce "judgment"applied to our court for recognition covers various types,which can be roughly divided into two categories:The first is divorce decisions,rulings and conciliation agreements issued by foreign courts(A conciliation statement);The other is the divorce judgment certificate and the divorce agreement,the divorce order,the settlement advice decision and the mediation letter that the court gives judicial effect.The separation agreement confirming the separation or nullity of the marriage and the decision to invalidate the marriage are not recognized.With regard to the recognition of foreign divorce judgments,there is no need to take international treaties and reciprocal relations as the premise.Divorce judgments have both status and payment judgments.The litigant who apply for recognition to the courts of our country could be a Chinese or a foreign citizen.Through the analysis,it is found that there are some problems in the system of recognition and enforcement of foreign divorce judgment in our country.On the theoretical side,there is a lack of in-depth understanding of the nature of foreign divorce judgment,we only pay attention to the identity of divorce judgment,and we think that divorce judgment is the formation of judgment,and ignore that some divorce judgments have the duality of forming judgment and payment judgment.At the same time,there is insufficient understanding of the theoretical basis of the split recognition of foreign divorce judgment.Although the theory of the separability of the recognition judgment has been affirmed by international treaties,the relevant practices in our country have not aimed at maximizing the interests of the parties concemed.In terms of legislation,the criteria for reviewing the conditions for recognition of foreign divorce judgements are not clear enough,and the procedures for recognition are not scientific and meticulous.Therefore,drawing on the relevant provisions of the European Union and the Hague Conventions,the criteria for the review of the conditions for the recognition of foreign divorce judgements and the procedural provisions for the recognition of foreign divorce judgements should be supplemented and refined,In order to better safeguard the rights and interests of the divorce parties and property rights and interests.