On The Applicable Norms Of Law Concerning Foreign-related Guardianship In China

The guardianship system originated in Roman times and has a history of more than two thousand years.In the long history,the guardianship system has changed from the original purpose of safeguarding the interests of the family and patriarchy to the purpose of safeguarding the rights and interests of the vulnerable,and this change is mainly due to the development of the international human rights movement.It not only liberates women from the legal status of the person under guardianship,but also gives strong protection to minors from the national and international communities.Moreover,more and more vulnerable groups are included in the scope of the person under guardianship.With the increasing frequency of international civil and commercial affairs,more and more foreign-related guardianship relations have emerged.Countries around the world have formulated domestic substantive laws and regulations related to guardianship.At the same time,in view of the fact that the foreign-related guardianship relationship involves the conflict of laws and the application of laws between different countries and jurisdictions,many countries have formulated the applicable legal norms for foreign-related guardianship.China has clearly stipulated the guardianship system in the General Principles of the Civil Law,the General Principles of Civil Code and the Civil Code.However,it was not until 2010 that the Law on Application of Laws was promulgated that the applicable legal norms for foreign-related guardianship were clearly stipulated in Article 30 of the Law on Application of Laws.Although the applicable legal norms for foreign-related guardianship are relatively scientific,it has been 10 years since the Law on Application of Laws was formally implemented.China’s economy grew rapidly during this period.Cross-border movement of people became more frequent.International marriages,study abroad and emigration were not uncommon.In addition,with the opening of China’s family planning policy and social concepts,transnational surrogacy and same-sex marriage has become a new issue in legislation and judicial practice.These emerging problems also bring a test to the legislation and judicial practice of foreign-related guardianship.Accordingly,the diversity and complexity of the foreign-related guardianship have increased since the introduction of the Law on Application of Law.The limit of the Article 30 has been highlighted.For example,Article 30 completely ignores the lex fori and the Law of location of property,which is not conducive to dealing with the above emerging issues.Therefore,it is necessary to consider the lex fori and the law on the location of the principal property of the person under guardianship as the applicable law of the foreign-related guardianship relationship,so as to protect the legitimate rights and interests of the person under guardianship and maintain the public order of our country.It is worth noting that many contents of the guardianship system have been further improved in China’s Civil Code,especially the adult guardianship system.At present,the adult guardianship system of our country is approaching the trend of parallel with the minor guardianship system,and the adult guardianship system may be further expanded as far as the legislative trend is concerned.Substantial law and conflict law are indispensable.With the improvement of the guardianship system in the substantive law,the research work and the legislative process of the conflict law should also be promoted.Therefore,the study and improvement of the Article 30 of the Law on Application of Laws has theory value and realistic meaning.Besides the einleitung and peroration,the full text is mainly divided into four parts.The first part discusses the origin of the applicable norms of China’s foreign-related guardianship law.The birth of the applicable norms of China’s foreign-related guardianship law is not only based on the objective needs of the increasing foreign-related guardianship relationship,but also based on the legislation and practice of the international community on the application of foreign-related guardianship law,especially the judicial interpretation and judicial practice related to the application of foreign-related guardianship law before the promulgation of China’s Law on Application of Laws.In terms of the international legislation and practice on the application of foreign-related guardianship,the following five categories of applicable laws are mainly applicable:applying the lex patriae of the person under guardianship;Applying the lex domicilii of the person under guardianship;Applying the lex fori;Applying the lex personalis of the person under guardianship and the lex fori;Respectively applying the lex personalis of the guardian and the person under guardianship and the lex fori.As far as the judicial interpretation of foreign-related guardianship in China is concerned,it is mainly reflected in Article 190 of the judicial interpretation issued by the Supreme People’s Court in 1988.The second part explains the basic characteristics of applicable norms of China’s current foreign-related guardianship law.The current applicable norms of China’s foreign-related guardianship law reflect the following basic characteristics:First,it follows the principle of the lex personalis.The legal relationship of guardianship is closely related to the relationship of identity.In view of the legislation and practice of private international law in the international community,the identity relationship of natural persons is usually subject to the lex personalis.Therefore,the Article 30 of the Law on Application of Laws also follows the principle of the lex personali,and combines the law of habitual residence and the law of the law of nationality state Second,the Article 30 of the Law on Application of Laws introduced the principle of protecting the vulnerable so as to better safeguard the vulnerable and realize substantive justice.Third,In order to soften the connecting points,make the application of law more flexible and fully protect the person under guardianship,Article 30 of the Law on Application of Laws is stipulated by the unconditional selective conflict norm.The third part is the questioning of the applicable norms of China’s foreign-related guardianship laws.First,with the emergence of new problems in foreign-related guardianship cases,China’s current applicable norms of foreign-related guardianship laws are not enough to maintain China’s public order,and it is not appropriate to completely ignore the application of the lex fori.Second,the guardianship of property is one of the important contents of the modern guardianship system,and the current applicable norms of China’s foreign-related guardianship laws should not ignore the application of the Law of location of property.Third,compared with the continuous refinement of the classification of China’s substantive guardianship laws,the current applicable norms of China’s foreign-related guardianship law should not be too general and simple,that is,it should make a necessary distinction between adults’ guardianship and minors’ guardianship,and then stipulate different applicable norms of law.The fourth part is the suggestions for perfecting the applicable norms of current foreign-related guardianship laws.Based on the above analysis and demonstration,it is not difficult to find that China’s current law applicable to foreign-related guardianship should be improved from the following aspects:First,the lex fori should be taken as one of the applicable laws for foreign-related guardianship.Second,the law on the location of the principal property of the person under guardianship should be taken as one of the applicable laws for foreign-related guardianship.Third,we should distinguish the foreign-related guardianship of adults and minors,and then stipulate different applicable norms of law.