Predicament And Out-way Of China's Application Of Law For Foreign-related Custody Of Minors

In recent years,with the frequent transnational mobility,the relationships in cross-national marriage families are getting more and more complicated.At the same time,due to the change of the concept of marriage and love and the change of sexual morality,non-marital cohabitation has become a family form that coexists with traditional marriage and family.Therefore,the competition for custody of minors after the dissolution of marriage and non-marital cohabitation has become more complex and sensitive.The issue of guardianship of foreign-related minors is of more complexity and specialty because of its foreign-related factors and the special group of minors.Article 30 in Law of the People's Republic of China on the Application of Law in Foreign-related Civil Relations(Law of Application Law hereafter)implemented in 2011 stipulates the law application of foreign-related guardianship in China for the first time:"Guardianship,will be abided by the law of the permanent residence of the person in regard or the law of the person's nationality that favors the protection of the rights of the minors",fills the blank concerning the legal application of the guardianship of foreign-related minors in China.Article 30 absorbs the international advanced legislative experience,adopts the result selection rule,sets the "beneficial privilege's rights and interests" as the standard of legal choice,and evaluates the applicable results of the relevant laws of each jurisdiction,and applies the results.The choice of "the law that is beneficial to the rights of warded persons" highlights the pursuit of substantive justice and the protection of the rights of the weak in contemporary private international law,and enhances the flexibility of legal choice.However,26 cases collected through open channels are used as entry points to analyze the practical application of the article in judicial practice.The probability of invocation of this article is low,and there are also many problems in the application process.So far,no case has been strictly applied to Article 30.In view of the huge gap between the legislative height of Article 30 of the Law Application Law and judicial practice,it focuses on the dilemma of the application of the law of guardianship of foreign minors.The dilemma lies in the failure of Article 30 of the Law Application Law in the Judiciary.Effective implementation in practice failed to achieve the original legislative objectives.There are four main reasons for this:First,there is a cross-cutting relationship between Article 30 and Article 25 Foreign-related Parents,Article 27 Foreign-related Divorce,and Article 29 Foreign-related Parenting Conflict Regulations.Second,in the process of judging the law that is beneficial to the rights of the ward,the identification and interpretation of the extraterritorial la,w,the comparison of the results of the application of the "one party" personal law,and the considerations that are beneficial to the rights of the ward are completed.Third,the exclusion of meaning autonomy in the single-system legislative model.Fourth,the 30th introduces discretion into the choice of law,resulting in the expansion of the judge's discretion but not constrained.In view of the dilemma applicable to the law of guardianship of foreign minors,in order to maximize the protection of the rights and interests of minors,and to provide operational guidance for judicial practice at the level of law application,four countermeasures have been proposed.First,Article 30 and the scope of adjustment for the conflicting norms of Articles 25,27 and 29.Second,standardize the judgment of the law that is conducive to the rights of the ward.Improve the system of identification and interpretation of the extraterritorial law,the "one party" in the scope of specific law choices,and the factors that are conducive to the rights and interests of the ward,improve the "no use","do not use","not use" Article 30 was put aside in judicial practice and became a "paper".Fourth,the exercise of the discretion of judges in process of legal choice is constrained by law.