Matrimonial Causes
According to Chinese scholarship,matrimonial causes contain personal and property relation between husband and wife,adoption,guardianship and maintenance issues.Among these issues,the GPCL only has a conflict rule for maintenance.Besides,the Adoption Act of the People’s Republic of China and “Measures of the Registration for Foreigners to Adopt Children in the People’s Republic of China” provides specific choice-of-law rules for adoption.Furthermore,the Judicial Interpretation of the GPCL stipulates the choice-of-law rule on custody.In comparison,the Conflicts Act of 2010 provides a more systematic solution.
3.1 Personal and Property Relation between Husband and Wife
The conflict rules in matrimonial regime provided by the Conflicts Act fills the legal gap left by the existing Chinese private international law,whose significance cannot be overestimated.Under Article 23 of the Conflicts Act,the personal relation between husband and wife shall be governed by the law of their common habitual residence,and in its absence,by the law of their common nationality.As to the property relation between husband and wife,the Conflicts Act provides in Article 24 that it shall be governed by the law selected by the parties by agreement among the law of habitual residence of one party,the national law of one party,and the law of the place where main assets are located.In the absence of such choice,the law of the parties’ common habitual residence shall apply; in the absence of the common habitual residence,the common national law of the parties shall apply.
The above two articles regulate the personal and property relation between husband and wife respectively; unfortunately,they have the same problem: when the parties have neither common habitual residence nor the common national law,which law shall govern their personal relation? And if the parties do not reach an agreement on the applicable law in the above situation,which law shall govern their property relation? Apparently,these two articles will be helpless if such situations occur.[7]Similar to the problem surfaced in Article 21 mentioned supra,the only remedy is to resort to Article 2(2); however,again,this approach will lead to uncertainty in practice.
3.2 Maintenance
In family law,maintenance usually means financial support given by one person to another based on particular family relation.Article 148 of the GPCL stipulates the choice-of-law rule for maintenance which prescribes the following:
Maintenance shall be bound by the law of the country to which the maintenance creditor is most closely connected.
In order to specify this provision,the Supreme People’s Court provides a more detailed explanation as follows:11
The mutual fosterage between the parents and children,the mutual support between the couple and the mutual support between other people in relationship of support shall be applicable for the law of the country in the closest contact with the fostered.The nationalities and domiciles of the fosterer and the fostered and the place where the fostered property is situated may all be deemed as in the closest contact with the fostered.
From the above provisions,it follows that the Doctrine of Most Significant Relationship has been introduced into the field of maintenance,which promotes the flexibility of choice-of-law significantly.The Supreme People’s Court of China goes on to hold that the nationalities and domiciles of the fosterer and the fostered and the place where the fostered property is situated may all be deemed as in the closest contact with the fostered,thus keeping a balance between flexibility and stability in judicial practice.
It should be noted that the Conflicts Act abandons the approach of incorporating the Doctrine of Most Significant Relationship,and switches to the principle favoring the maintenance creditor,as Article 29 provides that maintenance is governed by the national law or the law of habitual residence of either party,or by the law of the place where the main property supporting the maintenance creditor is situated,depending on which is more favorable to the maintenance creditor.
As to the relation between Article 148 of the GPCL and Article 29 of the Conflicts Act,it is generally believed that the latter prevails,but it does not apply retroactively.
3.3 Adoption
In family law,adoption means the creation of a parent-child relationship by judicial order between two parties who usually are unrelated.Adoption Act of the People’s Republic of China,effective as of April 1,1992,makes the following provision for the choice-of-law rule in Article 20:
A foreigner may,in accordance with this Law,adopt a child (male or female) in the People’s Republic of China.
With respect to the adoption by a foreigner in the People’s Republic of China,documents certifying such particulars of the adopter as age,marital status,profession,property,health and whether subjected once to criminal punishment shall be provided.Such certifying papers shall be notarized by a notarial agency or notary of the country to which the adopter belongs,and the notarization shall be authenticated by the Embassy or Consulate of the People’s Republic of China stationed in that country.The adopter shall conclude a written agreement with the person placing out the child for adoption,register in person the adoption with a Chinese civil affairs department and complete the procedure for notarizing the adoption at a designated notarial agency.The adoptive relationship shall be established as of the date of the notarization.(https://www.daowen.com)
What merits emphasis is that on November 4,1998,the Standing Committee of the National People’s Congress made a decision of revising the Adoption Act,12 which came into effect on April 1,1999.According to this Decision,Article 20 of the Adoption Act listed above is changed into Article 21,with the second paragraph changed to make two paragraphs as the second and third paragraph,and is revised as follows:
Where a foreigner wishes to adopt a child in the People’s Republic of China,the matter shall be subject to examination and approval of the competent authorities of the adopter’s resident country in accordance with the law of that country.The adopter shall provide papers certifying such particulars of the adopter as age,marital status,profession,property,health and whether ever subjected to criminal punishment,which are issued by the competent agencies of the country to which the adopter belongs.Such certifying documents shall be authenticated by a foreign affairs institution of the country to which the adopted belongs or by an agency authorized by the said institution,and by the embassy or consulate of the People’s Republic of China stationed in that country concerned.The adopter shall conclude a written agreement with the person who places out the child for adoption and register in person the adoption with a civil affairs department of the People’s Government at the provincial level.
If the parties or one party involved in the adoptive relationship wishes that the adoption be notarized,it shall be done with a notary agency that is qualified to handle foreign-related notarization and is designated by the administrative department of justice under the State Council.
What’s more,on May 25,1999,the Ministry of Civil Affairs issued the “Measures of the Registration for Foreigners to Adopt Children in the People’s Republic of China” for a better implementation of the revised Adoption Law.Article 3 of this administrative regulation stipulates that:
If foreigners are to adopt children in China,the adoption shall conform to the regulations provided by relevant Chinese laws of adoption as well as relevant regulations provided by the country to which the foreigner belongs; if problems occur due to contradictions between the regulations provided in laws of the foreigner’s home country and those provided in Chinese laws,the relevant governmental agencies of the two countries shall settle them through consultations.
The above provisions demonstrate unambiguously that both lex patriae and Chinese law govern the case when a foreigner adopts a child in China whose purpose is to guarantee the benefit and interest of the child undoubtedly.
From the above discussion,it follows that,the existing Chinese law,including the Adoption Act13 and the Measures of the Registration for Foreigners to Adopt Children in the People’s Republic of China,14 provides the conflict rules only in the situation where foreigners adopt children in China under which both adopters’ lex patriae and Chinese law apply.This is,basically,due to the fact that the overwhelming majority of international adoptions occurring in China are the cases in which Chinese children are adopted by foreign couples.Most of those adopters are nationals of Western developed countries.Therefore,the purpose of double application of both adopters’ lex patriae and Chinese law is to guarantee the benefit and interests of the adopted children.
However,with the rapid development of Chinese economy and society,the number of cases in which Chinese couples adopt foreign children is on rapid increase; therefore,the Conflicts Act provides conflict rules that are of general applicability in order to adapt to the new situation.Article 28 of the Conflicts Act states that the formal requirements of an adoption shall be governed by both the law of the habitual residence of the adopter and that of the adoptee,the effect of an adoption shall be governed by the law of the habitual residence of the adopter at the time of adoption,and termination of an adoption shall be governed by the law of the habitual residence of the adoptee at the time of adoption or the lex fori.
3.4 Guardianship
Guardianship usually indicates the fiduciary relationship between a guardian and a ward or other incapacitated person,whereby the guardian assumes the power to make decisions about the ward’s person or property.With regard to the choice-of-law on guardianship,prior to the Conflicts Act,China had no provisions in its national law.Nevertheless,in the judicial interpretation of the GPCL issued by the Supreme People’s Court,we can find one stipulation as follows:15
The institution,change and termination of guardianship are applicable for the national law of the person under guardianship.However,the institution,change and termination of the guardianship are governed by the national law of this country if the person under guardianship has domicile in this territory.
This provision shows that Chinese courts basically refer to the lex patriae of the person under guardianship when they deal with issues of guardianship,with the exception where the domicile of the person under guardianship is in China.In the latter case,Chinese law will be applicable instead.
The above lists and examines the relevant provisions concerning adoption,maintenance and guardianship either in Chinese laws,administrative regulations or judicial interpretations; now let’s look at a case concerning the issue of guardianship.16
Genhu Zhao (male),a Chinese national,married Tomoko Sasaki,a Japanese female who was domiciled in China in 1985.They had a son named Xiaohu Zhao who was a Chinese citizen under the Nationality Law of the PRC.[8]In 1990,Tomoko Sasaki left for Japan and refused to return to China any more.Subsequently,in 1993 Genhu Zhao commenced divorce proceedings in China and applied to the Chinese court for an order granting him the custody of Xiaohu Zhao,while Tomoko Sasaki applied for care and control of Xiaohu Zhao to be given to her.The Court inquired the intention of Xiaohu Zhao who,however,showed no definite inclination.[9]The court held that Chinese law should govern the issue of guardianship pursuant to Article 190 of the “Guidelines in Trial Implementation of the Supreme People’s Court on Implementing the General Principles of Civil Law,” insofar as Xiaohu Zhao was a Chinese national and domiciliary.Moreover,pursuant to the Marriage Act of China[10]and judicial practice,Chinese courts will follow the principle of better ensuring the physical and mental health as well as protecting the legal interests of the children when dealing with the children rearing in the trial on divorce cases.[11]Taking all the relevant elements into consideration,the Court rendered a decree in favor of the plaintiff,i.e.,Genhu Zhao.
As we know,the conflict rules on guardianship of minors usually give priority to lex patriae of the person under guardianship for the protection of the interests of minors,which is epitomized in the Hague Conventions on children protection.Therefore,we believe the Chinese court in this case has sound grounds to apply Chinese law,which is not only in conformity with Chinese law but also mirrors the international trend of protecting the interests of the disadvantaged group.
It merits motioning that the Conflicts Act provides a conflict rule for guardianship which reflects the principle of protecting the interest of weaker party.Under Article 30 of the Conflicts Act,international guardianship shall be governed by the law which is most favorable to the ward between the national law and the law of habitual residence of either party.Needless to say,both this article and Article 29 represent a historic improvement compared with the relevant provisions in the judicial interpretation of the GPCL.