涉外離婚案件管轄權研究
發(fā)布時間：2018-12-13 03:49
【摘要】：在國際私法的調(diào)整范圍內(nèi)，由于離婚案件與當事人的人身權利、財產(chǎn)權利密不可分，財產(chǎn)分割、子女監(jiān)護、子女撫養(yǎng)等事項的解決不僅直接關系到內(nèi)國公民及其家庭的利益，對于社會和國家的穩(wěn)定和發(fā)展也有著極其重要的意義。涉外離婚案件的管轄權在國際上并沒有統(tǒng)一的規(guī)則，除了一些特殊的限制之外，各國對離婚案件管轄權有著充分的立法權限；管轄權對法律適用的意義使得涉外離婚案件管轄權的確定更具有重要的意義。而各國的作法均不相同，離婚案件的管轄權立法與實踐頗為混亂。筆者試圖對管轄權立法進行歸納與整理，對現(xiàn)行制度及其發(fā)展趨勢作出分析，并對我國涉外離婚制度的完善提出些許建議，以期能對我國涉外離婚制度的發(fā)展有所貢獻。 第一章主要是對涉外離婚案件管轄權制度進行簡要介紹。首先闡述了涉外離婚案件管轄權制度的定義及其在國際私法中的重要意義；其次明確了涉外離婚案件管轄權中的直接管轄權和間接管轄權，并將二者的關系作一界定。 第二章著眼于涉外離婚案件管轄權的國內(nèi)立法與實踐分析。首先介紹了英美法系和大陸法系關于涉外離婚案件直接管轄權的立法與實踐，包括英、美、法、德及瑞士；其次介紹了兩大法系的間接管轄權立法與實踐，包括英、美、法及瑞士，此外，還闡述了外國離婚判決承認的其他條件。 第三章介紹了關于涉外離婚案件管轄權的國際立法，包括1902年海牙((關于離婚與別居管轄權與法律沖突公約》、1968年海牙《承認離婚與司法別居公約》以及歐盟《婚姻事項管轄權及判決的承認與執(zhí)行公約》，并對公約中體現(xiàn)出的趨勢作出分析。 第四章則主要論述的是涉外離婚案件管轄權的沖突及解決。首先說明了涉外離婚案件管轄權沖突的定義及其表現(xiàn)，主要從平行訴訟的角度進行分析；其次對涉外離婚管轄權沖突的起因進行分析，著重從管轄根據(jù)擴大化這一法律原因和當事人利益驅(qū)動這一經(jīng)濟原因入手；再次，結合涉外離婚案件管轄權沖突的解決原則與各國在管轄權制度方面的具體做法，提出了解決涉外離婚案件管轄權沖突的基本做法。 第五章是對中國涉外離婚案件管轄權制度的分析及完善建議。首先對中國涉外離婚案件管轄權制度進行了梳理，從建國以來直至《中華人民共和國民事訴訟法》頒布，詳細列舉了現(xiàn)行有效的涉外離婚案件管轄權規(guī)定，，包括直接管轄權和間接管轄權兩個方面；其次從我國社會現(xiàn)實及國際交流合作的角度對中國涉外離婚案件管轄權制度進行分析，總結了立法與實踐中存在的問題，并有針對性地提出了立法完善建議。
[Abstract]:Within the scope of the adjustment of private international law, the settlement of divorce cases is not only directly related to the interests of the citizens of the country and their families, but also to the personal rights of the parties, the property rights, the division of property, the custody of children, and the maintenance of children. It is also of great significance to the stability and development of society and country. The jurisdiction of divorce cases involving foreign countries does not have uniform rules in the world, except for some special restrictions, all countries have sufficient legislative jurisdiction over divorce cases. The significance of jurisdiction to the application of law makes the determination of jurisdiction in divorce cases concerning foreign affairs more important. The practice of divorce cases is not the same, and the legislation and practice of divorce cases is quite confused. The author tries to sum up and arrange the jurisdiction legislation, analyze the current system and its development trend, and put forward some suggestions for the perfection of the foreign divorce system in our country, in the hope that it can contribute to the development of the foreign divorce system in our country. The first chapter is a brief introduction to the jurisdiction system of divorce cases involving foreign affairs. Firstly, the definition of jurisdiction system of divorce cases involving foreigners and its significance in private international law are expounded. Secondly, the direct jurisdiction and indirect jurisdiction in foreign divorce cases are defined, and the relationship between them is defined. The second chapter focuses on the analysis of domestic legislation and practice of jurisdiction over divorce cases involving foreign countries. Firstly, it introduces the legislation and practice of direct jurisdiction in divorce cases involving foreign countries in Anglo-American law system and civil law system, including Britain, the United States, France, Germany and Switzerland. Secondly, it introduces the legislation and practice of indirect jurisdiction in the two legal systems, including Britain, the United States, France and Switzerland. Chapter III describes international legislation on jurisdiction in foreign divorce cases, including the Hague of 1902 (Convention on jurisdiction and conflicts of laws concerning divorce and Divority), The Hague Convention on the recognition of divorce and Judicial Separation in 1968 and the European Union Convention on the recognition and Enforcement of jurisdiction and judgments in Matrimonial matters. The fourth chapter mainly discusses the conflicts and solutions of jurisdiction in divorce cases involving foreign countries. Firstly, it explains the definition and manifestation of jurisdiction conflict in divorce cases involving foreign countries, mainly from the angle of parallel litigation. Secondly, it analyzes the causes of the conflicts of jurisdiction over divorce involving foreigners, focusing on the legal reason of the expansion of jurisdiction and the economic reason driven by the interests of the parties. Thirdly, combined with the principle of resolving the jurisdiction conflict of divorce cases involving foreign countries and the specific practice of jurisdiction system in various countries, this paper puts forward the basic methods of resolving the jurisdiction conflict of divorce cases involving foreign affairs. The fifth chapter is the analysis and the perfect suggestion to the jurisdiction system of the divorce cases involving foreign affairs in China. First of all, it combs the jurisdiction system of divorce cases involving foreign affairs in China. From the founding of the people's Republic of China to the promulgation of the Civil procedure Law of the people's Republic of China, it enumerates in detail the effective jurisdiction provisions of divorce cases involving foreign affairs. Including direct jurisdiction and indirect jurisdiction; Secondly, from the angle of our social reality and international exchange and cooperation, this paper analyzes the jurisdiction system of divorce cases involving foreign countries in China, summarizes the problems existing in legislation and practice, and puts forward some suggestions for the perfection of legislation.
【學位授予單位】：河北大學
【學位級別】：碩士
【學位授予年份】：2012
【分類號】：D997.1;D925.1
本文編號：2375822
[Abstract]:Within the scope of the adjustment of private international law, the settlement of divorce cases is not only directly related to the interests of the citizens of the country and their families, but also to the personal rights of the parties, the property rights, the division of property, the custody of children, and the maintenance of children. It is also of great significance to the stability and development of society and country. The jurisdiction of divorce cases involving foreign countries does not have uniform rules in the world, except for some special restrictions, all countries have sufficient legislative jurisdiction over divorce cases. The significance of jurisdiction to the application of law makes the determination of jurisdiction in divorce cases concerning foreign affairs more important. The practice of divorce cases is not the same, and the legislation and practice of divorce cases is quite confused. The author tries to sum up and arrange the jurisdiction legislation, analyze the current system and its development trend, and put forward some suggestions for the perfection of the foreign divorce system in our country, in the hope that it can contribute to the development of the foreign divorce system in our country. The first chapter is a brief introduction to the jurisdiction system of divorce cases involving foreign affairs. Firstly, the definition of jurisdiction system of divorce cases involving foreigners and its significance in private international law are expounded. Secondly, the direct jurisdiction and indirect jurisdiction in foreign divorce cases are defined, and the relationship between them is defined. The second chapter focuses on the analysis of domestic legislation and practice of jurisdiction over divorce cases involving foreign countries. Firstly, it introduces the legislation and practice of direct jurisdiction in divorce cases involving foreign countries in Anglo-American law system and civil law system, including Britain, the United States, France, Germany and Switzerland. Secondly, it introduces the legislation and practice of indirect jurisdiction in the two legal systems, including Britain, the United States, France and Switzerland. Chapter III describes international legislation on jurisdiction in foreign divorce cases, including the Hague of 1902 (Convention on jurisdiction and conflicts of laws concerning divorce and Divority), The Hague Convention on the recognition of divorce and Judicial Separation in 1968 and the European Union Convention on the recognition and Enforcement of jurisdiction and judgments in Matrimonial matters. The fourth chapter mainly discusses the conflicts and solutions of jurisdiction in divorce cases involving foreign countries. Firstly, it explains the definition and manifestation of jurisdiction conflict in divorce cases involving foreign countries, mainly from the angle of parallel litigation. Secondly, it analyzes the causes of the conflicts of jurisdiction over divorce involving foreigners, focusing on the legal reason of the expansion of jurisdiction and the economic reason driven by the interests of the parties. Thirdly, combined with the principle of resolving the jurisdiction conflict of divorce cases involving foreign countries and the specific practice of jurisdiction system in various countries, this paper puts forward the basic methods of resolving the jurisdiction conflict of divorce cases involving foreign affairs. The fifth chapter is the analysis and the perfect suggestion to the jurisdiction system of the divorce cases involving foreign affairs in China. First of all, it combs the jurisdiction system of divorce cases involving foreign affairs in China. From the founding of the people's Republic of China to the promulgation of the Civil procedure Law of the people's Republic of China, it enumerates in detail the effective jurisdiction provisions of divorce cases involving foreign affairs. Including direct jurisdiction and indirect jurisdiction; Secondly, from the angle of our social reality and international exchange and cooperation, this paper analyzes the jurisdiction system of divorce cases involving foreign countries in China, summarizes the problems existing in legislation and practice, and puts forward some suggestions for the perfection of legislation.
【學位授予單位】：河北大學
【學位級別】：碩士
【學位授予年份】：2012
【分類號】：D997.1;D925.1
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相關期刊論文 前2條
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2 盛勇強;涉外民事訴訟管轄權沖突的國際協(xié)調(diào)[J];人民司法;1993年09期
本文編號：2375822
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