Research On The Legal Application Of Disputes Concerning Foreign Visitation Rights

Since the right of visitation was incorporated into the legal norms of marriage and family in our country,the subject of its rights has always been regarded as the parent who did not live with the children after divorce.With the change of modern family structure and concept,the types of disputes over visitation rights have emerged beyond the aforementioned legal situations.At the same time,the Law of the People’s Republic of China on the Application of Foreign-related Civil Legal Relations(hereinafter referred to as the "Law on the Application of Law")has no separate clear provisions on the application of law to disputes over foreign-related visitation rights.Therefore,in the past ten years when disputes over foreign-related visitation rights have become more frequent,various judicial practices have appeared in the application of law to disputes over foreign-related visitation rights.Among them,ignoring the choice of law in cases with foreign-related factors and directly applying my country’s substantive law,identifying the legal application of foreign-related visitation rights disputes as parent-child relationship for legal application,and absorbing and applying the visitation rights issues in incidental lawsuits Especially prominent.The main reasons for the above problems are: on the one hand,judicial practice has not clearly identified the nature of the legal relationship of foreign-related visitation rights,and has insufficient understanding of the legal conflicts faced by foreign-related visitation rights.The confusion of meanings has resulted in forcibly incorporating the legal relationship of visitation rights in the non-traditional sense into the category of traditional legal relations of visitation rights,thus erroneously applying the law based on the relationship between parents and children;on the other hand,there is a lack of separate application in existing legal rules.Regarding the conflicting norms of foreign-related visitation rights disputes,there is no provision to guide and regulate whether the choice of law in foreign-related disputes can be absorbed and applied.In the process of applying the law in practice,independent disputes over foreign visitation rights cannot be relied upon,and incidental disputes over foreign visitation rights are arbitrarily absorbed.If it is absorbed and applied in a way that goes against the legislative purpose of conflict of laws,it will cause the possibility of conflict rules originally stipulated in legislation to lose the possibility of application,thereby indirectly achieving the effect of "law evasion" and effectively losing the function of conflict norms..Therefore,this paper focuses on the following questions: What are the problems in the judicial practice of foreign-related visitation rights disputes? What’s causing these problems? What is the nature of visitation rights? How should the law apply to disputes over foreign visitation rights? In this regard,this article is divided into the following four parts:The first chapter mainly sorts out the existing judicial cases of foreign-related visitation rights disputes,divides the types of foreign-related visitation rights disputes that have occurred in our country,and summarizes the application of laws,and on this basis,finds the existence of foreign-related visitation rights disputes in judicial practice.Problems: For example,in the application of law for foreign-related visitation rights disputes,there are unclear identification,wrong application of Article25 of the Law on the Application of Law,indiscriminate and arbitrary absorption and application of visitation rights,direct application of Chinese substantive law,etc.The second chapter aims at the problem of confusion in identification of foreign-related visitation rights disputes,and discusses the nature of visitation rights from the point of view of origination and development by sorting out domestic and foreign theories and theories on visitation rights disputes and the legal system of visitation rights.It is believed that visitation rights are an identity right among close relatives,not exclusive to parents.And using the method of comparison,it compares the different provisions of China,the United States,the United Kingdom,Australia and Germany on the subject,exercise and obstruction relief of visitation rights in five countries,and summarizes the possible conflicts of laws between China and China in disputes over foreign-related visitation rights..On this basis,it clarifies the difference between the legal relationship of visitation rights and the relationship between parents and children from the three aspects of the scope of application,the conflict of laws and the relationship formula,so as to discover the problem of legal application of independent foreign-related visitation rights disputes in judicial practice.The third chapter summarizes the characteristics of absorption and application in incidental litigation based on the cases of judicial practice in which conflict norms are absorbed and applied: such as the indistinguishability of different legal relationships,the substitution of the family formula of the absorbed legal relationship,the absorption of conflict norms according to legal relationship.From the characteristics of the absorption and application of incidental lawsuits,it is found that the reasons for the absorption and application of the incidental litigation are three aspects: the merger of lawsuits in the proceedings,the preliminary problems in the conflict of laws,and the court’s tendency to apply the law of the court.The fourth chapter discusses suggestions on the legal application of foreign-related visitation rights on the basis of the foregoing.In view of the lack of conflicting norms in the choice of law for independent foreign-related visitation rights disputes,it is suggested that conflict-of-law norms applicable to foreign-related visitation rights legal issues should be established,and should be based on the law of the child’s habitual residence,the common habitual residence of the visitor and the person being visited.Land law is a family formula.In addition,it is necessary to improve the systematic identification of foreign-related visitation rights,guide practice to clarify the judicial boundaries of conflicting norms,and apply them separately in incidental lawsuits.