Study On The Application Of Law Of Foreign-related Dependency Disputes In China

In the foreign-related dependency disputes between parents and minor children,due to the existence of foreign-related factors,how to choose the law that should be applied to the “dependency” relationship has become the most important issue in resolving such disputes.In 2010,the Law of the People's Republic of China on the Application of Laws to Foreign-related Civil Relations resolved the law application of foreign-related marriage and family relationships,and also clarified the rules for legal choices for foreign-related parent-child relationship.Among them,Article 29 clearly stipulates the conflict rules applicable to dependency,and judicial interpretation also incorporates the concept of parental support of minor children into the category of maintenance.However,in judicial practice,different conflict rules have been applied to the same legal relations,and the choice of conflict rules is not even based on Article 29.In judicial practice,there are usually four types of cases involving child support issues: disputes over changes in dependency relationships,disputes in request for dependency,child dependency disputes in live-in relationships,and disputes involving dependency in foreign-related divorce cases.For the same kind of dependency disputes,the judges choose different conflict rules.In practice,in addition to Article 29,judges often apply the Article 25 and Article 30 to settle child dependency disputes.Misapplication of conflict rules indicates that judicial practice has deviated from legislation in terms of the definition of the concept of dependency and the scope of application of dependency conflict rules,resulting in uncertainty and improper application of the law.In addition,the custody conflict rules requires judges to compare the substantive laws guided by different connection points when choosing the applicable law,and the chosen one should be beneficial to the dependents.However,in judicial practice,judges often ignore this requirement,fail to see the substantive law guided by their comparative connection points,and simply or reasonably apply the law,and directly apply the local law of the court to solve the problem of dependency.It can be seen that there is a certain degree of difficulty in applying the "Best" law selection method of fostering conflict rules in legislation,resulting in the practice of ignoring the value pursuit of the legislation and improperly applying conflict norms based on considerations such as efficiency.Therefore,how to understand the scope of application of the dependency conflict norms and how to determine the legal choice method of the dependency conflict rules need to be analyzed and demonstrated from the perspective of jurisprudence.First of all,to define the scope of application of the dependency conflict regulations,it is necessary to identify qualitatively the "dependency" according to the lex fori.The key to the problem is that the newly implemented "the General Principles of Civil Law" in China adopts the Anglo-American law system of guardianship and has no concept of parental rights.However,the "Marriage Law" adopts the concept of parental rights in the civil law system and regards guardianship as parental.Instead.China's "Applicable Law",like the "Marriage Law",not only stipulates the law application of parental relationship,but also the law application of guardianship relationship.With the implementation of the General Principles of Civil Law,the applicable law has shown confusion in the application of conflicting rules in judicial practice due to the adoption of a marriage and family legislative framework that does not match it.Therefore,it is necessary to define the applicable scope of confusing related conflict specifications.Specifically,it can be divided into three aspects: First,the difference between the paternity conflict rules and the dependency relationship conflict rules;the second is the distinction between the dependency conflict rules and the guardianship conflict rules;the third is the definition of the scope of application of the lawsuit divorce conflict rules.Regarding the first aspect,the concept of dependency is not completely opposed to the paternity relationship.In the current legal framework,legislative provisions on parenting relationships often apply the term "parenting education",while paternity relationships are defined as rights and obligations of "protection and education".Therefore,although the paternity relationship conflict rule in Article 25 and the Article 29 are legally coincident,the special law Article 29 should be applied when addressing the issue of dependency.Regarding the second aspect,if it is considered that the system of parental rights is included in the broad concept of guardianship,then Article 26 of the General Principles of Civil Law on the question of dependency should be a “special "Articles of law,when facing specific support disputes,the relevant provisions of "the General Principles of the Civil Law" and "Marriage Law" regarding parental rights should be resolved.Therefore,in the foreign-related dependency dispute,the dependency conflict rules is still a special law compared with the guardianship conflict rules.Therefore,the Article 29 dependency conflict rules needs to be applied to resolve the foreign-related child dependency dispute.Regarding the third aspect,although the problem of child dependency in a divorce involving foreign lawsuits can be regarded as a side effect of divorce,the legal relationship between parental support for children and the legal relationship between divorce are two separate concepts.In addition,the value pursuit of the two legislations is also different.Article 27 is set up in respect of the public order and good customs of the court.Article 29 is to protect the rights and interests of the dependents.It can be seen that,as two independent legal relations,litigation divorce and support should be applied to different conflict regulations in foreign-related cases.This will help achieve the substantive justice pursued by legislation and maximize the protection of the interests of minors.Secondly,Article 29 adopts a flexible law selection method,which gives judges too much discretion and at the same time gives them heavy judicial tasks.In the process of law selection,the judge has neither standard nor rules to choose and judge the substantive law that is most beneficial to the dependents.In such cases,judges often abandon their judgments on the results of substantive law and directly look for reasons for the applicability of the lex fori.Therefore,it is necessary to appropriately add certain rules to the "Best" law selection method to play a certain restrictive role.Reducing the judicial tasks of judges can also increase the certainty of law application.Judicial practice lacks a certain standard on how to judge "best law for the dependents",and should be considered with reference to principles that already have clearer standards in international legislation and judicial practice.As the dependents are mostly minors,we can analyze the possible legal selection criteria of the "best law for the dependents" by referring to the "best for the guardian" and "children's best interests" principles.For example,the "best for the guardian" have the rules to exam the true wishes of the guardian;and in the "children's best interests principle",when the child can clearly express his or her wishes,the child's own expressed wishes shall prevail to determine what is the best for the guardian.Therefore,starting from the above analysis and arguments,if we want to clarify the scope of application of the conflict rules and accurately apply the conflict rules,we need not only legislative amendments and improvements,but also judicial accurate understanding and grasp of related specific issues.From the perspective of legislation,first of all,with regard to the scope of application of the dependency conflict rules,the legislative level should make a choice between the relationship between guardianship and parental rights in the Law of Applicable Law.If following the large guardianship legislative model of the General Principles of Civil Law,the relevant provisions on parental rights in the Law of Applicable Law should be cancelled.Maintaining uniform legislation is conducive to the follow-up of judicial activities.Or,a judicial interpretation can be used to clarify the conflict rules that should be applied to dependency disputes.Secondly,the legislative level needs to make use of judicial interpretations to provide for an overly broad system in favor of the dependants.It can be modeled first,that is,to make abstract provisions,and in specific cases,the judge can also judge from the perspective of a rational person.For example,in the law selection process,looking for laws that are beneficial to the dependents,the true wishes expressed by the dependents should be respected,and the level of support that the obligor can achieve can be judged from three aspects of economy,spirit and life.From a judicial perspective,judges are required to identify different legal relationships in different dependency disputes.Article 29 dependency conflict rules apply to support relationship and support disputes,while other rights and obligations between parents and children apply as appropriate.Guardianship conflict rules and paternity relationship conflict rules.After clarifying what kind of conflict rules should be applied to different dependency disputes,the implementation of dependency conflict rules also requires judges to constantly measure the results of the application of the law.The legal reasoning section can accurately explain the legitimacy of the applicable law selected by the law,and better protect the rights of the dependants.