Notes to Chapter Five
1.Detailed discussion,see XIAO YONGPING & HUO ZHENGXIN,Family Issues in China’s Private International Law,4 JOURNAL OF CAMBRIDGE STUDIES,56-71 (2009).
2.Zhonghua Renmin Gongheguo Minfa Tongze [GPCL] art.147 (1986) (PRC).
3.WILLIAM M.RICHMAN,WILLIAM L.REYNOLDS,UNDERSTANDING CONFLICT OF LAWS 403 (2003).
4.Guanyu Banli Hunyin Dengjizhong Jige Shewai Wenti Chuli Yijian de Pifu [Answer of the Ministry of Civil Affairs to Several Issues Concerning the Registration of Foreign Marriage],dated December 9,1983.
5.Tung-Pi Chen,Private International Law of the People’s Republic of China: An Overview,35 AM.J.COMP.L.,471 (1987).
6.Guanyu Zhuwai Shilingguan Chuli Huaqiao Hunyin Wenti de Ruogan Guiding [Some Provisions on the Issues Related to the Marriage of the Oversees Chinese for the Chinese Embassies and Consulates],dated December 27,1983.
7.Zhonghua Renmin Gongheguo Shewai Minshi Falvguanxi Shiyongfa [Act on the Application of Laws over Foreign-related Civil Relationships] arts.26,27.(2010).
8.HAN DEPEI & XIAO YONGPIN,GUOJI SIFAXUE [PRIVATE INTERNATIONAL LAW] 145 (2004).
9.See GARY B.BORN,INTERNATIONAL CIVIL LITIGATION IN THE UNITED STATES 472-475 (3rd ed.,1996).
10.Zuigao Renmin Fayuan Guanyu Shiyong Zhonghua Renmin Guoheguo Minshi Susongfa Ruogan Wenti de Yijian [Opinions of the Supreme People’s Court on the Application of the Civil Procedure Law of the People’s Republic of China] art.15,dated July 14,1992.
11.Zuigao Renmin Fayuan Guanyu Shiyong Zhonghua Renmin Gongheguo Minfatongze Ruogan Wenti de Yijian [Supreme People’s Court,Opinions on Application of the General Principle of Civil Law of the People’s Republic of China],92 Zuigao Renmin Fayuan Gongbao 22[Bulletin of Supreme People’s Court] art.189 (1988) (PRC).
12.Zhonghua Renmin Gongheguo Quanguo Renmin Daibiao Dahui Guanyu Xiugai Zhonghua Renmin Gongheguo Shouyangfa de Jueding [Decision of the Standing Committee of the National People’s Congress on Revising the Adoption Law of the People’s Republic of China],dated November 4,1998.
13.Zhonghua Renmin Gongheguo Shouyangfa [Adoption Act of the People’s Republic of China] art.21 (1992,revised in 1998) (PRC).
14.Waiguoren zai Zhongguo Shouyang Zinü Dengjibanfa [Measures of the Registration for Foreigners to Adopt Children in the People’s Republic of China],dated May 25,1999.(https://www.daowen.com)
15.Zuigao Renmin Fayuan Guanyu Guanche Zhixin Zhonghua Renmin Gongheguo Minfatongze Ruogan Wenti de Yijian [Guidelines in Trial Implementation of the Supreme People’s Court on Implementing the General Principles of Civil Law] art.190,dated January 26,1988.
16.QI XIANGQUAN,SHEWAI MINSHI GUANIXI FALV SHIYONGFA [GENERAL THEORY OF APPLICABLE LAW OF FOREIGN CIVIL LITIGATION] 165 (2005).
【注释】
[1]In the countries whose law has legalised same sex marriage,the definition of marriage is different.For example,under Canadian law,marriage,for civil purposes,is the lawful union of two persons to the exclusion of all others,Civil Marriage Act,S.C.2005,c.33(Canada).
[2]It is interesting to note that,according to “Provisions of Registration of Marriage between a Chinese and a Foreigner,” following Chinese citizens are prohibited from marrying foreigners: persons in active military services,diplomatic personnel,public security officers,persons occupying crucial and confidential positions,and those possessing important classified information.See “Zhongguo Gongmin tong Waiguoren Banli Hunyin Dengji Jixiang Guiding” [Provisions of Registration of Marriage between a Chinese and a Foreigner],in The People’s Republic of China State Council Bulletin 831 (Sept.30,1983,No.18).
[3]Under Chinese law on marriage,no marriage may be contracted before the male party has reached 22 years of age and the female party 20 years of age.Late marriage and later childbirth shall be encouraged.Zhonghua Renmin Gongheguo Hunyin Fa [Marriage Act of the People’s Republic of China] art.6 (2001,revised in 2011) (PRC).
[4]Under Article 31 of the Marriage Act of China,divorce shall be allowed if both husband and wife are willing to divorce.Both parties shall apply to the marriage registration authority for divorce.The marriage registration authority issues a certificate of divorce after confirming that both parties are indeed willing to divorce and have made proper arrangements for their children and have properly disposed of their property.See Zhonghua Renmin Gongheguo Hunyinfa [Marriage Act] art.4 (1980,revised in 2001)(PRC),art.31.
The divorce registration process can be quick and easy.If the parties have reached an agreement regarding child custody,child support and joint property/debts,the parties can jointly register a divorce at the marriage registration office of the Bureau of Civil Affairs,located at their place of habitual residence.
[5]Under Article 32 of the Marriage Act,where either the husband or wife applies to get divorced,he or she may file a suit in a People’s Court for divorce.Id.,art.32.
[6]The article remains the same in the Interpretation on CPL implemented in 2015.Zuigao Renmin Fayuan Guanyu Shiyong Zhonghua Renmin Gongheguo Minshisusongfa de Jieshi[Interpretation of the Supreme People’s Court on the Application of the Civil Procedure Law of the People’s Republic of China],Interpretation No.5 [2015] of the Supreme People’s Court (PRC),art.15.
[7]In the Draft prepared by the Chinese Society of Private International Law,such problems do not exist.Regrettably,the relevant articles in the Draft were not accepted by the legislators.Under Article 30(1) of the Draft,the personal relation between husband and wife shall be governed by the law of their habitual residence which the spouses have in common,and,in its absence,by the law of the place which is most closely connected to them.As to the property relation between husband and wife,the Draft introduces party autonomy with certain restrictions,which provides that it shall be governed by the law expressly selected by the parties with which they have substantial relationship.In the absence of such a choice of law,the law governing their personal relation shall be applied.But so far as the immovable property is concerned,the law of the place where the immovable property is situated shall be applied.
[8]Under Nationality Law of China,any person born in China whose parents are both Chinese nationals or one of whose parents is a Chinese national shall have Chinese nationality.Zhonghua Renmin Gongheguo Guojifa [Nationality Law of the People’s Republic of China] art.4 (1980) (PRC).
[9]According to “Some Particular Opinions of the Supreme People’s Court Regarding the Treatment of Children Rearing Issue in Trial of Divorce Cases by the People’s Courts,” in the case of disputes occurring between the parents regarding which party a minor child will live with,the opinions of the child shall be taken into consideration.“Zuigao Renmin Fayuan Guanyu Shenli Lihun Anjian Chuli Zinü Fuyang Wenti de Ruogan Juti Yijian” [Some Particular Opinions of the Supreme People’s Court Regarding the Treatment of Children Rearing Issue in Trial of Divorce Cases by the People’s Courts] art.5,dated Nov.3,1993.
[10]If a dispute arises between the two parents over the custody of their child who has been weaned and they fail to reach an agreement,the People’s Court shall make a judgment in accordance with the rights and interests of the child and the actual conditions of both parents.Zhonghua Renmin Gongheguo Hunyin Fa [Marriage Act of the People’s Republic of China] art.6 (3) (2001) (PRC).
[11]Concerning the children rearing in the trial on divorce cases,the People’s Court shall,for the purpose of better ensuring the physical and metal health as well as protecting the legal interests of the children,and considering the rearing capacity of both the father and mother as well as the rearing conditions,comply with the provisions in Articles 29 and 30 in the Marriage Act of the People’s Republic of China to perform proper trial on the cases of divorce.Zuigao Renmin Fayuan Guanyu Shenli Lihun Anjian Chuli Zinü Fuyang Wenti de Ruogan Juti Yijian [Some Particular Opinions of the Supreme People’s Court Regarding the Treatment of Children Rearing Issue in Trial of Divorce Cases by the People’s Courts] preamble,dated Nov.3,1993.