涉外离婚案件管辖权研究
发布时间：2018-12-13 03:49
【摘要】：在国际私法的调整范围内，由于离婚案件与当事人的人身权利、财产权利密不可分，财产分割、子女监护、子女抚养等事项的解决不仅直接关系到内国公民及其家庭的利益，对于社会和国家的稳定和发展也有着极其重要的意义。涉外离婚案件的管辖权在国际上并没有统一的规则，除了一些特殊的限制之外，各国对离婚案件管辖权有着充分的立法权限；管辖权对法律适用的意义使得涉外离婚案件管辖权的确定更具有重要的意义。而各国的作法均不相同，离婚案件的管辖权立法与实践颇为混乱。笔者试图对管辖权立法进行归纳与整理，对现行制度及其发展趋势作出分析，并对我国涉外离婚制度的完善提出些许建议，以期能对我国涉外离婚制度的发展有所贡献。 第一章主要是对涉外离婚案件管辖权制度进行简要介绍。首先阐述了涉外离婚案件管辖权制度的定义及其在国际私法中的重要意义；其次明确了涉外离婚案件管辖权中的直接管辖权和间接管辖权，并将二者的关系作一界定。 第二章着眼于涉外离婚案件管辖权的国内立法与实践分析。首先介绍了英美法系和大陆法系关于涉外离婚案件直接管辖权的立法与实践，包括英、美、法、德及瑞士；其次介绍了两大法系的间接管辖权立法与实践，包括英、美、法及瑞士，此外，还阐述了外国离婚判决承认的其他条件。 第三章介绍了关于涉外离婚案件管辖权的国际立法，包括1902年海牙((关于离婚与别居管辖权与法律冲突公约》、1968年海牙《承认离婚与司法别居公约》以及欧盟《婚姻事项管辖权及判决的承认与执行公约》，并对公约中体现出的趋势作出分析。 第四章则主要论述的是涉外离婚案件管辖权的冲突及解决。首先说明了涉外离婚案件管辖权冲突的定义及其表现，主要从平行诉讼的角度进行分析；其次对涉外离婚管辖权冲突的起因进行分析，着重从管辖根据扩大化这一法律原因和当事人利益驱动这一经济原因入手；再次，结合涉外离婚案件管辖权冲突的解决原则与各国在管辖权制度方面的具体做法，提出了解决涉外离婚案件管辖权冲突的基本做法。 第五章是对中国涉外离婚案件管辖权制度的分析及完善建议。首先对中国涉外离婚案件管辖权制度进行了梳理，从建国以来直至《中华人民共和国民事诉讼法》颁布，详细列举了现行有效的涉外离婚案件管辖权规定，，包括直接管辖权和间接管辖权两个方面；其次从我国社会现实及国际交流合作的角度对中国涉外离婚案件管辖权制度进行分析，总结了立法与实践中存在的问题，并有针对性地提出了立法完善建议。
[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.
【学位授予单位】：河北大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D997.1;D925.1
本文编号：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.
【学位授予单位】：河北大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D997.1;D925.1
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相关期刊论文 前2条
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2 盛勇强;涉外民事诉讼管辖权冲突的国际协调[J];人民司法;1993年09期
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