【作者】 焦燕；

【导师】 韩德培；

【作者基本信息】 武汉大学 ， 国际法， 2005， 博士

【摘要】 本文阐述了婚姻冲突法中的三个主要问题,分别是结婚的法律适用问题、离婚管辖权与法律适用问题,以及夫妻财产制的法律适用问题。全文共分五章。 第一章导论指出,尽管婚姻冲突法是国际私法中最古老最悠久的部分,但当前我们仍应重视对婚姻冲突法问题的研究,原因如下:其一,各国婚姻冲突法的具体制度与具体规则的分歧仍然非常严重;其二,最近几十年的国际社会史无前例地成为滋生跨国婚姻与婚姻冲突法问题的温床;其三,婚姻冲突法因其特殊性,有助于我们更好地理解冲突法革命理论的价值;其四,20世纪婚姻实体法的发展必然对婚姻冲突法产生深刻的影响,具体的影响需要我们作进一步考察。婚姻实体法在20世纪的重大发展表现在:赋予了男女双方即夫妻双方在家庭事项上的平等权利;承认结婚双方的合意是结婚最主要的基础,结婚的形式要件与实质要件都大为松弛;离婚权利被认为是普遍存在的权利,离婚自由得到肯定,离婚的过错主义转变为离婚的破裂主义;妻子在家庭财产方面逐渐取得了平等的控制权和支配权,夫妻的分别财产制与共同财产制处于两个极端,但在保护夫妻双方平等的财产权利方面则是一致的。最后,由于婚姻法律关系是典型的身份法律关系,属人法成为贯穿整个婚姻冲突法的最常见、最重要的系属公式,然而,关于属人法的具体标准,本国法主义与住所地法主义的矛盾也蔓延了婚姻冲突法的全部领域。 第二章探讨结婚的法律适用问题。 在结婚领域,除美国、中国等少数国家之外,大部分国家都区分结婚的形式要件与实质要件,并分别为这两类问题规定各自的冲突规则。就结婚的形式要件而言,各国的规定相对一致,都将婚姻缔结地法作为一般规则;同时,为了尽量促使婚姻在形式上有效,越来越多的国家开始采用选择性的冲突规则,即在婚姻缔结地法之外,允许法院选择适用当事人属人法,从而有利于婚姻的形式有效性,此外如英国等国家则通过接受反致来达到同样的效果。在结婚的形式要件方面,本文还探讨了领事婚姻这类特殊的婚姻形式,它适用当事人属人法,构成婚姻缔结地法规则的例外。我国应当区分在内国缔结的婚姻和在外国缔结的婚姻,前者只适用缔结地法,后者则可以选择适用缔结地法或当事人属人法,以实现促进婚姻有效的实体政策,而不必依赖间接的、迂回的反致制更多还原

【Abstract】 The dissertation elaborates three main issues of the marriage conflicts law, that is choice of law in marriage, jurisdiction and choice of law in divorce, and choice of law in marital property respectively. The full text is divided into five chapters.The introductory chapter points out that we should attach importance to the research on the marriage conflicts law because great differences and discrepancies of concrete systems and rules in this area still exist though it is the most long-developed part in private international law. Moreover, recent decades of international society has unprecedentedly become a hotbed that breeds multinational marriages and the corresponding problems in marriage conflicts law. We noticed that in the 20th century developments have been subtly influenced and reforms have been strongly urged in marriage conflicts law by changes in the marriage substantive law, such as giving husband and wife equal rights in family affairs, regarding mutual consent of both parties as the basis of marriage, relaxing both the formal and essential requirements of marriage; affirming the freedom in divorce, adopting the irretrievable breakdown of marriage not the fault of one spouse as the divorce cause; giving wife equal rights in the control and administration of family properties, etc. Marriage is a typical kind of status, so the personal law is still the most common and important formula of attribution in marriage conflicts law. The standard of the personal law, however, is splitted into two opposing doctrines: one is the nationality doctrine upheld by the civil law countries and the other is the domicile doctrine upheld by the common law countries. Such conflict is pervasive in the marriage conflicts law.Chapter Ⅱ deals with choice of law problems in the validity of marriage.Although several countries do the opposite, most countries in the world distinguish between formal requirements and essential requirements of a marriage and make each type of requirements subjected to different choice-of-law rules. In regard to formalities, the general rule is the lex loci celebrationis rule which is recognized everywhere, but the personal law also takes its role which is either double applied with or, more commonly, alternative applied to the law of the place of celebration; in regard to essential requirements, conflicts rules are more complicated, because eachconnecting factor such as domicile, nationality, place of celebration and place of forum seems to affect the choice of law process. In order to find a more appropriate applicable law, new approaches have been quested and tested among which the "proper law" approach is most famous. The English writers have suggested this approach, which means that both formal and essential requirements of a marriage should be governed by the law of the country which has the most real and substantial connection with the marriage. Due to its lack of certainty and clearness, the proper law approach in the validity of marriage has not obtained a widespread support though it is very successful in areas of contract and tort.It is strongly suggested that reforms should be taken to the present choice-of-law rules concerning marriage in China. The most important thing is to classify formal requirements and essential requirements and make them subjected to different choice-of-law rules, because a uniform application of the law of the place of celebration means that we have to apply a foreign law when the marriage is celebrated in a foreign country by two Chinese people. Judges will have to make use of the "public order" more frequently to avoid the application of foreign law which is found intolerable to them. This problem, however, should have been resolved by the application of personal law to essential requirements.Chapter III discusses choice of law problems in divorce.Here the divorce issue is limited to the dissolution of marriage and does not include distribution of the marital property and custody of the children. In the second half of the 20th century, more and more countries have accepted the "favor divorce" policy in the private international law, and this trend manifests itself both in jurisdiction and choice-of-law of divorce. In this chapter, jurisdiction is dealt with exceptionally in addition to choice-of-law, because these two issues are so intimately interrelated in divorce conflicts law that neglect of either one would be inappropriate.Bases for jurisdiction over divorce claims include three main connecting factors, that is, nationality, domicile and habitual residence. When establishing jurisdiction^ rules over divorce, we should try to make a balance between two kinds of contrary aims, one of which is to broaden personal rights to divorce in local courts, the other of which is to maintain a minimum international system. So far, there are four bases for jurisdiction over divorce have been widely adopted which include the habitualresidence of the respondent, the habitual residence of the plaintiff, the common nationality of both parties and the nationality of the plaintiff. As far as China is concerned, we should place more value on the connecting factors of domicile and habitual residence. Moreover, we should regard the nationality and the domicile of the plaintiff as two independent bases for jurisdiction over divorce.The applicable law for divorce is either lex fori in the common law countries or the national law in the civil law countries; besides, new choice-of-law rules such as party autonomy and alternative conflict rules have emerged recently. The lex fori rule can guarantee the personal right of action, further the substantive policy of favor divorce and bring convenience to the administration of justice. The lex fori rule, however, also has some defects, the most serious one of which is that with the much extensive bases of jurisdiction, the connection between the place of forum and the parties is not very strong or even very tenuous, therefore, the lex fori rule will encourage people to do forum-shopping and result in large quantities of "limping marriages". Another basic rule governing divorce is the rule of the national law, which creates many problems during the process of determining what is the national law when the parties don’t have a common nationality or either party has more than one nationality or has no nationality at all.Chapter IV is concerned with choice of law problems in marital regime. Party autonomy has become the main rule in matrimonial property, but unlike in the area of contract, the limits on the exercise of autonomy in marital regime are still very strong. When lack of such autonomy, the marital regime will have to be governed by an objective connecting factor, that is, the personal law of the parties. In order to bring out equal rights between husband and wife, the rule of husband’s personal law has been abandoned; nevertheless, it produces a difficult question that is how to determine the applicable law when the spouses do not have a common personal law. As far as the personal law is concerned, it means the law of the matrimonial domicile in the common law countries or means the law of the common nationality in the civil law countries. We should adopt the law of the domicile as a principle rule because the matrimonial property has a more substantial connection with the living center of both parties.As to the problem of whether we should make a distinction between movable andimmovable property, the general principle of choice of law in matrimonial property is the system of unity, which means that both movable and immovable property are governed by the same law, that is, the common personal law, especially the law of the common domicile of both parties, because with its nature of relating to status, the matrimonial property should be treated as an abstract unity. However, when a third party is involved, the matrimonial property should be treated as the general property and consequently be governed by the rule of lex situs.The last problem in matrimonial property is whether the applicable law should be changed incidentally when the connecting factor of personal law has changed. Two kinds of opposing resolutions are proposed, one of which is called the principle of mutability upheld by common law countries, and the other of which is called the principle of permanence upheld by civil law countries. In a moving and opening society as such, we should adopt the principle of mutability in order to satisfy the practical needs of social transitions and to unify the applicable law of matrimonial property and intestate succession.The final chapter points out that developments in marriage conflicts law are consistent with the general trend of private international law influenced by the "American conflicts revolution". Now the Choice-of-law rules in matrimonial affairs has become more and more subtle and refined, admitted certain flexibility, and exposed its characteristic of "content-orientation" and "result-orientation". Moreover, the particular approach of international coordination in marriage conflicts law has averted itself from reducing the gap of conflicts rules between various countries to establishing new rules independent from any country in order to satisfy the needs of the whole international society. At last, the final chapter also tentatively proposes the conflicts rules on matrimonial matters in order to be helpful to our ongoing legal reforms in private international law.更多还原