On The Judicial Practice Of The Application Of Laws Relating To Foreign-related Juvenile Guardianship In China

With the rise of transnational marriages and foreign-related family relationships,the disputes over foreign-related juvenile guardianship have also increased.Article 30 is related to the application of foreign-related guardianship laws.The "favorable"selection criteria is the concrete manifestation of the principle of the best interests of the children.Although the flexible and diversified method of selection contained in this provision meets the trend of international legislation.Unfortunately,the application of Article 30 has not achieved the expected results.Therefore,this thesis first conducts an empirical analysis of the 34 judgment documents,and summarizes the problems and causes of the application of laws relating to foreign-related juvenile guardianship in China.Then,through comparative analysis,it examines and judges the"favorable" selection criteria in Article 30;finally put forward suggestions for the application of laws relating to foreign-related juvenile guardianship in China.Specifically,this thesis analyzes the core legal issues based on empirical analysis and comparative analysis,divided into four chapters:Chapter One raises questions and summarizes three issues through analysis of relevant judgment cases:First,the judge does not divide the divorce relationship in foreign-related litigation,and applies Article 27 to the foreign-related guardianship included in it;second,the judge wrongly determine the legal nature which should have chosen to apply Article 30 but incorrectly applied Article 25 and 29;third the judge ignored and misunderstood the "favorable" selection criteria and used shortcuts to apply Chinese law.Chapter Two discusses the crux of the legal application dilemma.There are three main problems of this kind:First,there are competitions and conflicts in the content of the current guardianship system and legal systems such as parental rights and raising system;second,the judgment process of "favorable" selection criteria is more complicated;third,the the exclusion of the principle of autonomy.These deep-seated problems make it difficult for judges to accurately characterize the legal relationship when applying the law,which leads to the misapplication or abandonment of the"favorable" selection criteria in Article 30.Chapter Three first compares the relationship and difference between the"favorable" selection criteria and the principle of the best interests of the children,pointing out that the standard is essentially derived from the principle of the best interests of the child.The former is the specific manifestation of the latter in the field of foreign guardianship.Secondly,it compares the provisions of the "favorable"selection criteria in international treaties and other countries’ legislation,and provides a reference for the refinement and restriction of the "favorable" selection.criteria.Finally,it aims at the relevant judicial cases,points out the misunderstandings that should be avoided when applying "favorable" selection criteria.Chapter Four aims to provide a perfect path for the application of laws relating to foreign-related juvenile guardianship in China.This approach starts from two perspectives.One is to abandon the "favorable" selection criteria in Article 30,the corresponding measures after the abandonment is replacing the "favorable" selection criteria with the personal law;Then promulgation of judicial interpretations to complement and improve Article 30,such as clarifying the scope of application of foreign-related guardianship;narrowing the scope of "one party" in Article 30;refinement and reduction of the "favorable" selection criteria;limited introduction of the principle of autonomy of will.Finally,based on forward-looking thinking,the thesis taking the first case of raising children of same-sex couples as an example,analyzed the guardianship issues involved in same-sex marriage and transnational surrogacy,and conceived and analyzed the trend of the case.