A Research On The Issues Of Law Applicable To Foreign-related Marital Property Relationship In China

Since Law of the Application of Law for Foreign-related Civil Relations of the People’s Republic of China promulgated in 2011,the legal application of foreign-related marital property relationship in China has been guided by clear conflict rules.In the judicial field,China has accordingly issued the Supreme People’s Court on the application of People’s Republic of China foreign-related civil The Judicial Interpretation of Several Issues(1)provides a judicial interpretation of some of the provisions of the Law on the Application of Foreign-related Civil Relations.However,in the judicial practice,there are still problems caused by the omissions and gaps in the legal provisions that cause the court to confirm that the law is applicable when the basis is not clear and the standards are not uniform.To solve these problems,we must seek the essence of the problems from the relevant provisions of the law on this relationship in China.This paper is divided into four chapters : An Outline of issues of Law Applicable to Foreign-related Marital Property Relations in China,The Problems and Perfection of the applicable Law on the Choice of Foreign-related Marital Property Relationship Agreements in China,The Problems and Perfection of Personal Law Connection Point of Foreign-related Marital Property Relationship in China,The Problems and Perfection in the Applicable Law of Marital Property Relations in China’s Foreign-related Divorce.The first chapter expounds the question of foreign-related marital property relationship.Discuss the concept of marital property relationship and the meaning of this relations in China international private law.Then make the introduction and analysis of China’s relevant provisions concerning the foreign-related marital property relationship,including Chapter VIII of Civil Code in China,Article 24 of the Law on the Application of Laws Concerning Foreign-related Civil Relations of the People’s Republic of China,and the Supreme People’s Court’s Application The contents of the Judicial Interpretation of Several Issues on the Law of the People’s Republic of China on the Application of Civil Relations in Foreign Countries(1)involve the effect of law applicable.According to these effect,then explain the main issues and the causes.The main content of the second chapter is about the problems in China’s applicable law on foreign-related marital property contract choices,which are mainly divided into issues applicable to the principle of autonomy of the will and issues concerning the use of the personal law connection points.In connection with the cases in judicial practice,the issues in which the principle of autonomy of the will apply mainly include the choice of the form of the legal agreement,the retroactivity and change of the agreement,and the relationship between the legal choice agreement and the third party.Suggestions for improving the above issues include making it clear from the law that the form of the legal agreement should only be concluded in written form,that the law clearly stipulates the effects of retroactive forces and changes in the legal choices,and that the legal choice can be used against third parties.If it can be confronted,it should clearly define the conditions that must be met。The main content of the third chapter is the problems about the connection in personal law existing in China’s foreign-related marital property relationship.Such as frequent changes in the legal application results,“common habitual residence” and “common nationality”.The gaps and omissions other than those,such as the wrong reference factor of the principle of the closest connection between the courts.Well-developed proposals include the provision in the law of determining the basis for the common habitual residence in the old and new habitable places at the time of change of residence and filling the gaps and omissions other than the "common habitual residence" and "common nationality country" with the place of marriage.The main content of the fourth chapter is Article 27 of China’s the Law on the Application of Laws Concerning Foreign-related Civil Relations applies the legal consideration of divorce and marital property relationship in divorce in the judicial practice.The perfect proposal is divided into two aspects,from the perspective of legislation to consider the divorce of the lawsuit divorce conflict rule divorce,from the perspective of judicial practice the legal application considerations should be divided into two aspects of divorce and property relations to consider the deduction.Suggestions about above problem mainly consider the judging methods that courts may use in specific cases of judicial practice and the inferences of applicable laws,and refer to legislative cases in other countries。In hope that it can help to make the legislation of foreign-related marital property relations in China to be fine and concrete,and promote the unification of court standards and consistency of judgment in judicial practice.