| At present,China has not yet formed a systematic legislation on the management of foreigners' residence in China after they have obtained the permanent residence qualification.The provisions on the civil rights and obligations of foreigners with permanent residence are only scattered in the departmental regulations.The Ministry of Justice of the People's Republic of China issued the “Regulations of the People's Republic of China on the Administration of Permanent Residence of Foreigners(Draft for Comment)”(hereinafter referred to as the “Regulations on the Administration of Permanent Residence of Foreigners”).Legislators hope that it can become an important legal basis for our country's management of foreigners' permanent residence matters.However,from the perspective of specific provisions,the Regulations on the Administration of Permanent Residence of Foreigners still focus on procedural regulations such as the application and approval of foreigners' permanent residency status,while the regulations on civil rights and obligations of foreigners during their permanent residence in China are rare.Few mentions.This is undoubtedly contrary to the legislative positioning of the regulations.This problem is mainly composed of two reasons.On the one hand,the management of foreigners' residence in our country focused on the monitoring of their exit and entry,while relatively neglecting the regulations and management after obtaining a residence permit in China.On the other hand,compared with other countries' legislation on foreigners' civil laws,relevant regulations in China are not very mature,and there is still a lot of room for improvement.Taking the permanent residency of foreigners as the starting point,few studies have paid attention to their qualifications for civil rights and obligations.In short,China's legislation on the civil rights and obligations of permanent resident aliens is still at the initial stage of exploration,with greater room for improvement.The formulation of the“Regulations on the administration of permanent residence of foreigners”should be considered as an opportunity to improve the relevant provisions under the existing legislative framework,so as to achieve the comprehensive administration of foreigners in accordance with the law.It is true that the discussion on permanent residence of foreigners includes two aspects: the acquisition of permanent residence qualification and the exercise of permanent residence.However,whether or not a country considers granting foreigners permanent residence status and the conditions for granting permanent residence status are issues at the level of national labor policy,which are not the focus of this paper.This paper focuses on the following issues: can the current legislation of our country accurately determine the qualifications of foreigners who reside permanently in China to enjoy the rights and undertake the obligations? Should the provisions of China's laws on the civil rights and civil acts of foreigners continue to apply to foreigners permanently residing in China? How to determine the scope of the rights and obligations of the permanent residence foreigners in China in the civil activities? On the basis of the above research,this paper puts forward specific suggestions on the improvement of China's legislative provisions on the permanent residence of foreigners.The first chapter of this article discusses the changes brought about by the establishment of permanent residence of foreigners to the relevant provisions of Private International Law.Private International law regulates the civil and commercial legal relations between equal subjects in the world.In other words,in foreign civil and commercial legal relations,it is necessary to judge whether a foreigner can exercise a specific right according to the relevant provisions of Private International Law.There are two levels of contents here: one is to judge which country's laws foreigners should exercise their rights in accordance with;The second is to judge whether foreigners have this right.The former is manifested as conflicting norms,while the latter relates to the provisions on the civil legal status of foreigners in the domestic substantive law.In the field of conflict norms,"domicile" and "place of habitual residence" are important links of personal law.Although academic and judicial circles have not yet formed a unified standard for the specific identification of the two,it is certain that,after foreigners obtain permanent residence qualification in other countries,according to the foreigners' intention of permanent residence in other countries and the fact of long-term residence,the laws of that country are most likely to become the domicile law or the place of habitual residence law to which the conflict norms refer.This also means that the substantive law of a country should contain provisions for permanently resident aliens.In terms of the provisions on the civil legal status of foreigners,domestic laws need to confirm the qualification of permanent resident foreigners to enjoy civil rights and assume obligations.The recognition of permanent residence aliens' civil rights and capacity for conduct,in addition to meeting the requirements of general international civil and commercial exchanges,must also reflect the purpose and value orientation of establishing permanent residence in a country when stipulating its special civil rights and capacity,thus resulting in the differences in national status of aliens.On the one hand,the specific civil rights enjoyed by foreigners with permanent residence are richer than those of foreigners without permanent residence qualification,but on the other hand,the exercise of specific rights is still subject to certain restrictions.The second chapter is mainly based on the analysis of the meaning of private international law on the permanent residence of foreigners in the first chapter,examining the current legislation on the civil legal status of permanent residence of foreigners in our country,and pointing out the shortcomings of the current relevant legislation.This chapter starts with the legal provisions on the civil rights and obligations of foreigners in permanent residence before and after the enactment of the Regulation on the Administration of Permanent Residence of Foreigners,and makes a brief assessment of the Law of the People's Republic of China on the Administration of Exit and Entry and the Measures for Foreigners to Enjoy Relevant Treatment in Permanent Residence in China before the enactment of the new Regulation.On this basis,it analyzes the progress and shortcomings of the provisions on civil rights and obligations in the Regulation on the Administration of Permanent Residence of Foreigners.In accordance with the provisions of Articles 11 and 12 of the Law on the Application of Foreign-related Civil Legal Relations,the capacity for civil rights and capacity for conduct of natural persons are governed by the law of the place of habitual residence.However,China's judgment on "habitual residence" is somewhat uncertain,and there is no regulation on the judgment of habitual residence of foreigners permanently residing in China.Even if our country's substantive law has become the applicable law pointed to by the conflict provisions,our country's current laws do not specifically stipulate the rights and obligations of the permanent resident foreigners.To a certain extent,this has created a legislative gap.If we simply expand the application of analogy to the "natural person" provisions in the existing legislation,the conflict of legal meaning between the provisions will bring about the contradiction in the application of the law.In addition,in terms of specific civil rights,our country adopts a "one size fits all" legislative model for the restrictive provisions on foreigners' civil rights ability.It does not make an actual distinction between permanent resident foreigners in China and ordinary foreigners in China.It is uncertain whether permanent resident foreigners still need to be restricted by the general provisions when exercising their rights.At the same time,the vague definition of the legal status of foreigners permanently residing in China makes it more difficult to determine the content and scope of their specific civil rights.The third chapter analyzes the revision and improvement of the legislation on foreigners' permanent residency in China on the basis of the previous discussion and combined with actual conditions in our country.First of all,to determine the"Regulations on the administration of permanent residence of foreigners" legislative positioning,as our country on the permanent residence of foreigners management laws or regulations of the core content.The improvement of this regulation should be based on the further understanding of the status of foreigners and considering the further classification of foreigners in China according to the actual degree of contact between natural persons and our country,in order to clarify the civil legal status of different types of foreigners in the substantive law of our country.Clarify the relationship between permanent resident foreigners and ordinary foreigners,our nationals.Secondly,consider the conflict of laws and substantive law for further cohesion,regulation in China permanent residence of foreigners often residence for our country,and no longer need to according to the supreme people's court on the law applicable to foreign civil relations law "interpretation of the provisions of the 15 th,so as to improve the stability of the applicable law.In terms of specific legislation,the Regulation on the Administration of Permanent Residence of Foreigners clearly stipulates the civil legal status of permanent residence foreigners in our country,and adds provisions on the residence registration of permanent residence foreigners to determine their eligibility for corresponding civil rights.In addition,the provisions scattered in departmental regulations or normative documents should be made an integral part of the regulations and legislation to improve the legal order and strengthen the legal effect of the relevant rights and treatment provisions.Furthermore,the restrictions on the exercise of specific civil rights by foreigners who reside permanently in China should be appropriately reduced in light of the characteristics and values of the permanent residence system.In the field of labor employment,investment and management,it may be considered to formulate special provisions or regulations to adjust its civil rights and obligations,to make up for the gap in legislation.According to the nature of the specific civil rights and the characteristics of the subject of the rights,the reasonable difference between the permanent residence of foreigners and their nationals in the civil legal status is recognized,but it should also be avoided to limit the scope of the exercise of the rights of these foreigners. |
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