Study On The Application Of Law Of Foreign Matrimonial Property Relations

In recent years,due to the increasing close international exchanges,Chinese courts have handled a growing number of cases involving disputes of foreign matrimonial property relations,among which “how to apply the law” has become the main concern.Article 24 of the Law of the Application of Law for Foreign-related Civil Relations of the People’s Republic of China(hereinafter referred to as the Law of the Application of Law)makes provision for the application of law for matrimonial property relations.However,the provision made is too general.Hence,there is a large difference in the courts’ application of this article.Based on empirical research,by analyzing 183 cases related to foreign matrimonial property relations from the China Judgements Online,this paper discovers that in practice when dealing with disputes of foreign matrimonial property relations,different courts have a different understanding of the law.The judgement of similar cases from a same court also differs.There are problems in the classification of legal relations and the selection and application of conflict rules,which mainly manifest in the following three aspects.The first problem is the premise of the application of Article 24 of the Law of the Application of Law.In practice,courts often fail to correctly identify the foreign matrimonial property relations.There is an inaccurate judgment about the “foreign-related” factor of the matrimonial property relations and a confusion between the matrimonial property relations and the real property right relations.To determine the "foreign-related" factor,the court should first judge whether the matrimonial property relations comply with the four specific foreign-related factors stipulated by the law,and be cautious about the "other" foreign-related situations.At the same time,the judges can also exercise their discretion,excluding nominal foreign-related situations.In the matter of the matrimonial real property right relations,since the real estate involved in the disputes of the marital relations is not an ordinary object but an object with identity attributes,it should be classified as the matrimonial property relations rather than the real property right relations.The second problem is the selection of the application of Article 24 of the Law of the Application of Law.After the court has correctly classified foreign matrimonial property relations,it might not apply Article 24 of the Law of the Application of Law though it is supposed to.This involves the path the court takes to solve foreign-related issues and the retroactivity of the Law of the Application of Law.To solve the application of law for foreign-related civil relations,the conflict law should be used as the main solution,and the applicable law should be determined separately for the multiple foreign-related legal relations in the same case.Article 24 of the Law of the Application of Law has no retroactivity on cases of division of property in divorce concerning foreign affairs where one party is a Chinese citizen while the other is a foreign citizen.The application of law for other foreign matrimonial property relations may refer to Article 24 of the Law of the Application of Law.The third problem is the interpretation of Article 24 of the Law of the Application of Law.When applying Article 24 of the Law of the Application of Law,courts have different understanding of its provisions,such as the principle of party autonomy and the determination of connecting ground.The principle of party autonomy plays a very important role in solving the application issues of foreign matrimonial property relations.It is necessary to limit it.In particular,legislation is needed to protect the interests of the third party.In determining the applicable law based on objective connecting ground,especially regular residence,the applicable law should be based on the principle of change,but when one party proposes that his property rights acquired according to the original applicable law are infringed,the original applicable law should be applied to this part of property.To sum up,through empirical study,this paper concludes that in the seven years of the implementation of the Law of the Application of Law,courts have not yet reached a unified understanding of the application of the article,and that the distinctions are significant.These problems have arisen partly because of the misjudgment by the judiciary and partly because of unclear legislation.Based on summarizing the problems existing when courts apply Article 24 of the Law of the Application of Law,this paper will use several cases as the starting point and combine relevant theoretical research to analyze the causes of the courts’ misjudgments in these cases and respond to the application and legislation issues of Article 24 of the Law of the Application of Law.