Reflection And Revision Of The Conflict Law Of Foreign-Related Divorce By Agreement In China

With the advent of Article 26 of the Law of the People’s Republic of China on the Application of Laws concerning Foreign-related Civil Relations(hereinafter referred to as the Law on the Application of Laws),China has formally established the applicable rules of divorce law concerning foreign-related agreements.Article 26 conflict norms not only fully consider the judicial status quo in China,but also coincide with the value orientation of divorce freedom,which is in the forefront of international legislation and can be said to be one of the major breakthroughs in China’s private international law legislation.However,a series of application problems have appeared in the process of this article,and the voices of questioning are increasing.The most significant problem is that different courts have different understandings of the applicable scope of article 26 conflict rule and applicable scope of applicable law in foreign-related divorce cases.In essence,they do not clearly distinguish the boundary and relationship between foreign-related divorce by agreement,divorce agreement and litigation divorce.Meanwhile,,in the concrete application of the principle of autonomy of will,there are some problems,such as unclear way of choosing law,unclear time limit of choosing law and unclear application of law under the invalid choice of law.Therefore,it is indispensable to research on the law of divorce conflict by foreign agreement in order to respond to the social question of Article 26 and solve the problems in practice.Firstly,the legal definition and value orientation of divorce by foreign agreement lay a foundation for the study of divorce conflict law by foreign agreement.Taking the legal field of divorce by foreign-related agreement as the breakthrough point,this paper defines the "foreign-related" factors and resolves the identification problem of divorce by foreign-related agreement.At the same time,it will distinguish foreign-related divorce by agreement and related legal concepts,and clarify the relationship between foreign-related divorce by agreement and divorce agreement,and divorce by foreign-related litigation.Secondly,the legislation and judicial review of foreign agreement divorce law.In terms of legislation,the article 26 of the Law of Application of Law is analyzed and its rationality is analyzed.Judicially,search and sort out the cases of foreign-related divorce by agreement,analyze the situation of invoking Article 26 of the Law on the Application of Law,and summarize the case problems solved by applying the article,the choice of applicable law and the geographical distribution of cases.Thirdly,it analyzes and reflects on the problems existing in article 26.It is pointed out that there are three problems in the application of the norms of conflict in divorce by foreign-related agreement in judicial practice in China,that is,the scope of application of the in article 26 is not clear,the application of the parties’ autonomy of will is not sufficient,and the range of application of the applicable law is undefined.Finally,the amendment and improvement of foreign-related divorce conflict law should be based on correctly clarifying the relationship between foreign-related divorce by agreement and divorce agreement,foreign-related divorce by agreement and foreign-related litigation divorce,and further clarifying the applicable boundary of Article 26 and the choice of applicable law based on the existing problems in legislation and practice.It can be amended by issuing judicial interpretation to clarify the scope of application of Article 26,the applicable rules of the principle of autonomy of will and the scope of application of applicable law.