Article 29 of the “Law on the Application of Civil Relations in Foreign Countries”,which came into force in April 2011 in China,deals with conflict regulations concerning Foreign-related Maintenance.Judging from the application of this article in judicial practice in recent years,there are still some problems that make it a legislative spirit can not be truly reflected.This article mainly adopts a combination of theory and practice,focuseing on the main problems existing in the judicial application of this article.It is divided into three parts in the structure:The first part summarizes and analyzes the characteristics of China’s foreign-related conflicts.This conflict rule gives consideration to the personal nature and property of the supporting relationship on the principle of the application of the law,as well as the law of the place where the person’s laws and property are located.In the type of conflict regulation,the article adopts a type of conditional selective conflict specification,which stipulates that when one party chooses between the regular residence law,the nationality law,and the main property law.It is Protecting the rights and interests of the dependents as the criteria for selection of the law reflects the pursuit of the fairness of the results of the application of the law,which conforms to the value orientation of the pursuit of substantive justice in the private international law.The second part discusses the judicial application boundary between China’s foreign-related support conflict regulations and other relevant conflict norms.The“Law on the Application of Civil Relations in Foreign Relations” specifically regulates conflict rules for parent-child relations and divorce.Because parent-child relationships may include content of Maintenance,the divorce issue will also involve the content of Maintenance.In judicial practice,existing cases of different understandings and even confusions in case quotations were unavoidable,and the legislative objectives that directly affected the relevant laws cannot be implemented.Therefore,it is necessary to clarify the judicial application boundary of relevant laws.This should be done in two aspects,that is,defining the “scope” of conflict rules itself and the applicable scope of the applicable law.What is certain is that the norms of supportive conflict should apply to all different types of supportive relationships,including parental support for their children,the maintenance of their children and the Maintenance of their spouses,etc.,and the applicable law on its determination should apply to all forms of support.The application of the law to other issues of parent-child relations and divorce is resolved by the relevant conflict rules.The third part analyzes the judicial application of the criterion of “the protection of the rights and interests of the dependents” in the regulation of foreign-related conflict in China.Due to the practical difficulties in ascertaining multiple foreign laws at the same time to understand their relevant regulations and the current lack of operative judgmental criteria in the judicial practice as to “the protection of the rights and interests of the dependents”,the judges determine the applicable criteria.When the law ignores the selection criteria,or falls into the inertial thinking of the most closely linked analysis,it only pays attention to the connection point rather than the content of the law guided by the connection point.This makes the pursuit of the legal spirit of the application of the law fair.Reflected,the authority of the law has been eroded.The above problems can be solved to a certain degree by more relying on the specialized agencies that have emerged to provide services for the identification of foreign laws,and judicial interpretations that are helpful to the clarity of judgment standards. |