Legal application of foreign-related property

道可特法视界第1229篇原创文章

Abstract: 

The globalization of today's society is accelerating, and science and technology are developing rapidly. The distance between peoples of all countries continues to be brought closer, and international social interactions are increasingly close. Exotic relationship and exotic marriages are not uncommon. According to the latest statistics released by the Ministry of Civil Affairs of the People's Republic of China, the 2017 Statistical Report on Social Service Development, in 2017, a total of 41,000 pairs of foreign-related and overseas Chinese, Hong Kong, Macao and Taiwan residents were registered for marriage. At the same time, with the improvement of education level, people's awareness and ability to accumulate wealth is constantly improving, and cross-border tourism, home ownership, housing and immigration have become more and more. According to the relevant provisions of the Judicial Interpretation of the Law on the Application of Foreign-related Civil Relations Law of the People's Republic of China (the “the Law of the Application of Law”), one or both spouses are foreign citizens or their permanent residence is outside China, and the spouse’s property is outside China, or When the husband and wife sign a property agreement abroad, they may involve foreign-related property relations.

Article 24 of the Law of the Application of Law stated that “as for the property relation between husband and wife, the parties concerned may choose the applicable laws at the habitual residence, of the state of nationality or at the locality of the main properties of one party by agreement. If the parties do not choose, the laws at the mutual habitual residence shall apply; if there is no mutual habitual residence, the laws of the mutual state of nationality shall apply.” According to the provisions of this article, the legal application of foreign-related matrimonial property relations should first be based on the will of the husband and wife, but the scope of autonomy is limited, and can only be selected among three jurisdictions. At the same time, in the absence of meaning autonomy, the foreign-related property relationship of the husband and wife shall be in accordance with the order stipulated by the law.

In theory and practice, there is often a debate on the legal issue of foreign-related matrimonial property relations that should be applied when there is a lack of autonomy for husband and wife. First, when the parties have not chosen the applicable law, in accordance with the provisions of Article 24, the law of common place of residence should be applied. According to the relevant provisions of the Judicial Interpretation of the Law Applicable Law, the “People’s Court may be deemed to be the applicable law of foreign-related civil relations law when the natural person has lived for more than one year and has been living as a center of life when the foreign-related civil relationship is created or changed or terminated. The natural person’s place of residence is usually except for medical treatment, labor dispatch, official duties, etc. According to this provision, when the “regular residence” is determined, the court will have great discretion, even if someone meets the article somewhere. The two requirements of the prescribed length of residence and the intention of living may still not be recognized as “regular residence” in a certain place, which also adds great uncertainty to legal practice. Secondly, as global transportation becomes more developed, international exchanges are getting closer, people's activities are gradually expanding, and the scope and frequency of population movements are expanding. More than ever, people will change their homes more easily and more frequently. Therefore, as a connection point to conflict norms, “regular residence” itself has gradually become a very unstable factor. Thirdly, the current law does not clearly define the “life center”, and it is easy to blur the focus of “regular residence”. Inconsistent identification of “regular residence” will directly lead to differences in the applicable law that it points to, and the application of different applicable laws will also result in different judgments in the same case.

In addition, in judicial practice, real estate as one of the types of property is often the main cause of property disputes between husband and wife. Article 36 of the Law of the Application of Law stipulated that “the laws at the locality of real estate shall apply to the right to real estate.” In the absence of legal application of meaning autonomy, and the dispute over the ownership of foreign-related matrimonial property involving real estate, what choices should be made under Articles 24 and Article 36 to determine the applicable law of foreign-related matrimonial property relations has become one of the practical problems. The actual judicial decisions deal with this issue are also different.

International legal service team of Beijing Docvit Law Firm believes that, in the foreign-related relationship between husband and wife dispute, when the parties do not choose the applicable law, the identification of “regular residence”, as a conflicting specification connection point, need to be further clarified through laws and regulations. When the property in the property relationship of the foreign-related husband and wife is real property, because the relationship between marriage and family and the property rights coexist, it is necessary to clarify the selection criteria of different conflict norms. When the right of immovable property involved in a dispute flows between husband and wife, the dispute over the right of real estate shall be attributed to the discussion under the relationship of marriage and family. Therefore, Article 24 of the Law of Application Law shall be applied. Only when the dispute over the right of real property occurs between one of the spouses or between the spouses and the third party, and breaks through the constraint of the special relationship of the spouses, the provisions of Article 36 shall be applied.

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