Study On The Application Law Of Foreign-related Homosexual Marriage

With the widespread development of the human rights movement,the laws of more and more countries and regions recognize the legal rights of sexual minorities,and the legalization of same-sex marriage has been put on the agenda by many countries.Different countries have different attitudes towards same-sex marriage and different degrees of protection.Differentiated attitudes have led to the application of foreign-same-sex marriage laws and accompanying personal property disputes as hot topics and controversial issues in the field of private international law.At present,the gay population in our country is showing an increasing trend,but the current laws of our country do not recognize the effectiveness of same-sex marriage.In the trial of same-sex marriage cases involving foreign countries,Chinese courts generally apply the principle of public order reservation in private international law to negate the validity of the marriage.However,indiscriminate and complete denial of the effectiveness of foreign-same-sex marriages will result in the protection of the rights of personal property established by the relationship.Based on the reality of low social recognition of homosexual groups in China,this article proposes that China should regulate the application of the principles of public order from the legislative and judicial levels,and distinguish between cases of power confirmation and precedent in same-sex marriage involving foreign parties.This article firstly analyzes the legal status of different countries and regions to sort out the different models of same-sex marriage in the world.Then we analyze the dilemma faced by our country in theapplication of foreign-same-sex marriage laws from the standards applicable to the principle of public order retention and the current status of the law.Finally,we propose that our courts should conduct a specific analysis of the types of cases when trying foreign-sex-same-sex marriage cases.The same-sex marriages involving foreigners with the intention of substantive law in our country deny the effectiveness of such circumventing same-sex marriages by adopting the principle of public order reservation.In the case of civil disputes where the effectiveness of foreign-related same-sex marriages is a prerequisite,the court should clarify the main issues and incidental issues in the case,and then apply the principle of public order reservation in private international law according to the actual situation of the case to determine the effectiveness of foreign-related same-sex marriages.We can improve the deficiencies of the applicable laws of our country by establishing connection points,learn from the legal experience of other countries,and construct foreign-same-sex marriage substantive laws and applicable laws with Chinese characteristics.