Exploration On Conflict Of Laws’ Division Of Property In Divorce

With the continuous development and progress of society and economy, the interpersonal communication in different law districts becomes more and more frequent. As different nationalities in different areas of interpersonal communication are frequent, the number of intercultural marriage is also increase a large. At the same time, the number of foreign-related divorce is on rise. The property of segmentation is an important problem in the process of divorce.Due to the complexity of foreign divorce, property relations and its own between countries and regions of political, economic and various customs and habits of the differences, therefore, when both parties have foreign divorce division of property disputes conflict occurred in the application of the law. In order to safeguard the legitimate rights and interests of both parties and the stability of the social order, we must make the correct choice of application of law.This paper expounds the prerequisite rules of application of law problem, recognition and conflict problem which are involved in the division of property in divorce in the form of case. And combined with Law of the People’s Republic of China on Choice of Law for Foreign-related Civil Relationships( Hereinafter referred to as Application of Laws) and the Interpretations of the Supreme People’s Court on Several Issues Concerning Application of the Law of the People’s Republic of China on Choice of Law for Foreign-Related Civil Relationships(I)( Hereinafter referred to as Application of Laws’ Judicial Interpretation) the relevant provisions, it analyses deficiencies existing in our foreign-related divorce cases the law applicable to the problem, and to perfect our legislation and promote the process of monocracy. It is divided into three sections:The first section, through the introduction of a case leads to the segmentation in the foreign-related divorce property law application problems, the court in the presence of the law applicable to the trial of such cases phenomenon is not unified, and the applicable law will inevitably lead to the possibility of different trial unfair.The second section,it discusses some problems of conflict-of-laws related to division of property in divorce, they are recognition, prerequisite problem and legal rules which are involved in the case. About identification, it analyzes three conditions of this kind of case: the view of the court of first instance— legal relationship of right in rem; the view of the court of second instance—legal relationship of marital property; the other view—legal relationship of divorce. And this paper supports the second condition. About the prerequisite problem, it mainly discusses the connotation, constitutive requirements and the current legislative situation in our mainland, and points out that dealing this case like the two courts would lead to wrong judgment. At last, it expounds some rules of application of law about “relationship of marital property” what is based on the identification of division of property in divorce.The third section, combined with the analysis of the case, it rethinks the problem of the conflict laws of the foreign-related division of property in divorce case specifically from three aspects: “Recognition of the foreign-related division of property in divorce case”, “Introduction of the division system” and “Protection of the third party”. It is looking forward to propose a new solution of the problem of the conflict laws of the foreign-related division of property in divorce case.