An Analysis Of The Chinese Foreign-Related Divorce Jurisdiction Rules And Its Reconstruction

In the age of globalization,all countries in this world are more closely connected with one another than ever before.After becoming a formal member of WTO,China are increasingly engaging in global business.Opening to the outside world brings China new thoughts,and also makes Chinese law system and policy face new challenges,among which international divorce jurisdiction rules is of importance.Globalization can be regarded as the dissolution of traditional concept of nation and the political distinction between friends and enemies.Developed global trade makes the trend of depoliticization prominent.Therefore,the research of international divorce jurisdiction rules must introduce something new,jumping out of the clichés of the opposition of national sovereignty and the difference between cultures,and realizes that the expansion of jurisdiction comes from the practical needs of global business in the background of globalization.The conflict of jurisdiction is caused by the fact that every single country has different pursuits in the evaluation of global trading and public interests.In a word,the purpose of jurisdiction rules is to achieve a sustainable balance between the practical needs of economic progress and the defence of nation's public interests.The evolution of jurisdiction thoughts in decades is under the influence of no-fault divorce.It can be said that the rising of no-fault divorce casts off the public law status and makes divorce become a free choice of one's personal life,getting rid of the consideration of public interests.Tracing the development of jurisdiction rules in Europe,England,America and Japan,one can conclude that the revolution of jurisdiction thoughts goes through a way from nation first to human rights first.Europe leads the revolution of jurisdiction,first breaking down national boundaries,building up a baggy jurisdiction system,to best serve the free mobility of European people.Under the influence of no-fault divorce,American interstate divorce jurisdiction system achieves the change from state sovereignty first to personal rights first,reaffirming that one individual enjoys a constitutional right in marriage and divorce affairs.With the innovation of jurisdiction system caused by the growth of human rights and the decline of national sovereignty,international divorce jurisdiction finally becomes some sort of judicial service satisfying the practical economic needs.Europe has make a surprising progress in unifying jurisdiction rules of European countries.Its baggy jurisdiction system is a compromise to internal conflicts among member countries.Then,it must make a breakthrough in conflict rules and family law.Its exploration in jurisdiction rules,especially the introducing of agreement jurisdiction and first appeal court doctrine which enjoy great importance in reshaping china's current system.European jurisdiction system follows the tradition of civil law system,abandons doctrine of national law in conflict rules,and establishes a cooperation mechanism between jurisdiction rules and conflict rules,which contribute to not only deal with the fight of member states for jurisdiction,but also the protection of personal rights.Jurisdiction rules in England is influenced by Europeanization,but it still emphasizes the most significant connection between courts and parties,which displays the mixing and conflicts of two law systems.The rising of both no-fault divorce and the power of U.S.federal government result in the change of jurisdiction thoughts in America from State sovereignty first to human rights first.To deal with the interstate fight for jurisdiction,American court reaffirms the constitutional article of trust and respect and comes up with the idea of divisible divorce in order to shift the focus of interstate conflict on property division and custody rather than the termination of personal relation.However,the doctrine of national law in America aggravates the fight of parties to forum shopping,like the famous Saperstein divorce case.At the same time,the short time limit of residence length leads to the phenomenon of law evasion.China is now relying on the Supreme Court's reply,approval and judicial interpretation to construct the jurisdictional system,which is confusing and backward,and fail to meet the practical needs of economic development and external communication.Therefore,it is necessary to reconstruct China's foreign divorce jurisdiction system from two aspects: thought and rule.In the form of written law system,China's new jurisdiction system should follow the path from the national sovereign first to the human rights first and draw lessons from Europe and the United States in the field of their beneficial exploration of jurisdiction rules,including the establishment of cooperative mechanism of jurisdiction system and conflicts rules,the choice of two major points of contact habitual covering residence and nationality,the introduction of agreement jurisdiction and divisible divorce system,and other important content.In a word,the reform of China's jurisdiction rules over international divorce calls for the abandonment of the outdated concept of nationality,bases on the practical needs of global business in the new era and serves the global trading.