我国涉外收养关系解除法律适用规则的考察与完善

Examination and Improvement of the Applicable Law Rule of the Termination of Foreign-Related Adoption Relationship in China

  • 摘要: 2024年,我国宣布大幅停止向外国送养儿童。这一政策调整对我国现行涉外收养关系解除的法律适用规则提出挑战。采用“收养时被收养人经常居所地”与“法院地”两个连结点系基于我国曾是世界上最大的儿童送养国之一的事实,扩大我国国内法的适用可以更好维护我国被收养儿童与我国国家利益。问题在于,首先,收养时被收养人经常居所地法的适用不利于灵活保护儿童权益,也未考虑实践中弱者身份的转变。其次,法院地法的滥用容易导致挑选法院与“跛足收养关系”。为破除以上局限,建议删除“收养时”对“被收养人经常居所地法”的限定、增设“被收养人国籍国”连结点作为补充、限制法院地法的适用并贯彻弱者权益保护原则,以适应我国政策调整与实践发展,追求实质公平与正义。

     

    Abstract: In 2024, China announced a significant halt to sending children abroad for adoption. This policy shift challenges the existing applicable law rule governing the termination of foreign-related adoption relationships. The use of the "habitual residence of the adoptee at the time of adoption" and the "forum" as connecting factors is based on the fact that China was once one of the world's largest senders of children for adoption, and expanding the application of Chinese domestic law could better protect the interests of Chinese adopted children and China's national interests. However, the problems are twofold. First, the application of the law of the adoptee's habitual residence at the time of adoption is not conducive to the flexible protection of children's rights and fails to consider the changing status of the weaker party in practice. Second, the abuse of the lex fori can easily lead to forum shopping and "lopsided adoptions". To overcome these limitations, it is recommended to remove the restriction on the "law of the adoptee's habitual residence" at the time of adoption, add the "country of nationality of the adoptee" as a supplementary connecting factor, restrict the application of the lex fori, and implement the principle of protecting the rights of the weaker party, in order to adapt to China's policy adjustments and practical developments, and pursue substantive fairness and justice.

     

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