我国涉外抚养纠纷的法律适用与完善进路

The Judicial Application of Conflict Rules of Foreign-Related Maintenance for Child and Its Improvement

摘要: 《涉外民事关系法律适用法》第29条是处理涉外扶养案件的冲突规范，也是弱者利益保护原则在我国立法规范中的具体体现，但该条文在实践中的适用情况并不理想。我国法院审理涉外未成年抚养纠纷的司法实践表明，该类案件的法律适用存在适用过度扩张、抚养关系与监护关系的识别偏误、法律选择的释法说理过程粗略等问题。对此，在立法层面，应当在厘清第25条、第29条及第30条的适用关系基础上，细化第29条有关“扶养”、“有利于”的规定，将该条的连结点简化为被抚养人属人法、抚养人主要财产地法。同时，通过丰富和完善域外法查明数据库，提高法官通过利益衡量寻选冲突规范的证成要求，达至规范法律适用、切实保障被抚养人利益、提高司法公信力之目的。

Abstract: Article 29 of the Law on the Legal Application of Foreign-related Civil Relations is a conflicting norm for dealing with foreign-related maintenance cases, and is also a concrete manifestation of the principle of protection of the interests of the weak in China’s legislative norms, but the application of this provision in practice is not satisfactory. The judicial practice of our courts in dealing with foreign-related minor maintenance disputes shows that the application of the law in such cases suffers from over-expansive application, misidentification of the relationship between maintenance and guardianship, and a cursory process of interpretation and reasoning on the choice of law. In this regard, at the legislative level, on the basis of clarifying the relationship between the application of Article 25, Article 29 and Article 30, the provisions of Article 29 on “maintenance” and “benefit” should be refined, and the connection points of this Article should be simplified to the personal law of the dependant, the main law of the dependant and the law of the place of property of the dependant. At the same time, by enriching and improving the database for identifying extraterritorial laws, the judges will be able to increase the requirement of evidence for the selection of conflicting norms through the weighing of interests, with the aim of regulating the application of the law, effectively protecting the interests of dependants and improving judicial credibility.