A Study On The Judicial Practice Of The Application Of Law In Foreign-related Custody Cases

Law of the People’s Republic of China on the Application of Laws to Foreign-related Civil Relations has been in operation for nearly 8 years since 2010.On the application of the law of foreign-related custody,Art.30 replaces the lex personalis of the child with the criterion of favorable law,and requires the judge to choose a law which is conducive to the protection of the rights and interests of the child in the law of the State of habitual residence and nationality of one party.This more flexible method,in line with the pursuit of the Best Interest of Child Standard in the field of custody international legislative trend,reflects a certain degree of progress.But the legislative wording is too vague and lack of maneuverability,also the method of selection can not accurately reflect the value orientation of foreign-related custody.The empirical analysis shows that the effect of the application of this provision in judicial practice is not ideal.Firstly,there is a situation where Art.30 is not applied in the treatment of custody disputes incidental to divorce proceedings.Secondly,Art.25 and Art.29 are applied in custody cases.Thirdly,Art.30 is freely understood and applied in some cases.The above problems are mainly composed of two reasons.First of all,the boundary between maintenance and custody in substantive law is not clarified,the foreign-related maintenance and foreign-related custody is not clearly distinguished,and the legislation and judicial practice do not accurately grasp the types of disputes applicable to foreign-related maintenance and foreign-related custody,the value orientation behind the system and the corresponding selection criteria.This,on the one hand,leads to the wrong use of selection criteria in foreign custody legislation,on the other hand,it also leads to judges can not accurately grasp the legislative purpose behind the Art.30,failed to truly realize the protection of the interests of children.Secondly,because the legislation direct from the principle of best interests of child,the specific wording of Art.30 appears too general,and cannot provide concrete and feasible method guidance for judicial practice,which leads judges to use this provision often at a loss,which affects the protection of the interests of child.In order to give full play to the role of custody,and effectively protect the personal and property rights and interests of children,the Art.30 should be amended.Even if,for reasons of legal stability,there is no substantial modification of the provision,the provision should be perfected through judicial interpretation.This paper focuses on the following questions: What are the problems of Art.30 in judicial practice? What are the differences between foreign-related maintenance and foreign-related custody? How to apply the criterion of favorable law? On the basis of the above research results,this paper puts forward some concrete and perfect suggestions on the present situation of foreign custody legislation and judicial practice in China.The first chapter mainly use the statistical analysis method,combined with the current trial practice of the specific cases,enumerate the current application of foreign-related custody law in judicial practice of several major issues.In some custody cases incidental to foreign divorce litigation,the court should have applied the Art.30,but generally applied the Art.27 which is applicable to foreign litigation divorce;In some cases,the court mistakenly applied the Art.29 and Art.30 to deal with the issue of foreign-related custody;In some cases,Although the judges applied the correct article,they understood and applied the provisions freely and can not really protect the interest of the child.The second chapter analyzes and compares the connection and difference between foreign-related maintenance and foreign-related custody by using the method of comparative law.The types of disputes applicable to foreign-related custody are far richer than foreign-related maintenance,and the value orientation of foreign-related custody mainly lies in creating a healthy growing environment for children by standardizing a series of rights and obligations between parents and children,so we should not use the same selection criteria to deal with foreign-related custody and foreign-related maintenance.The third chapter discuss the application of the criterion of favorable law.Although the selection standard is derived from the principle of the best interests of child,it should not be stipulated in general terms as a specific legal rule.In theapplication of the criterion of favorable law,we should accurately grasp the legislative purpose of foreign-related custody,effectively consider from the interests of children,to avoid making mistakes like the excessive tendency of the woman,only to consider economic factors,taking into account unrelated factors and other misconceptions.The fourth chapter discusses how to modify and perfect the Art.30 on the basis of the discussion in the previous article.Consideration should be given to amending Art.30 to apply the lex personalis of the custody person to solve the problem of foreign-related custody.Even if,for reasons of legal stability,there is no substantial modification of the provision,the provision should be perfected through judicial interpretation,making it clear that in foreign divorce proceedings,the divorce issue should be divided with the accompanying custody and maintenance issues,respectively,to determine the applicable law.At the same time,the criterion of favorable law should be limited by specific refinement and restrictions,in order to guide the trial practice of judges,and truly realize the pursuit of the best interests of child.