中韩有关涉外夫妻关系冲突规则的比较研究

Abstract

The choice of law rules in The Act On Private International Law of The ROK, which was partial amended in 2016, concerning the foreign-related husband and wife relationship enjoy three features, an architecture of principles and exceptions is formed, the applying of the laws of the ROK is emphasized, and restricted party autonomy is introduced into the marital property system and the interests of the third party is stressed. The choice of law rules in The Law of the PRC on Choice of Law for Foreignrelated Civil Relationships regarding the foreign-related husband and wife relationship are ambiguously for the following issues, the relationship between the choice of law rule for divorce by agreement, which is article 26, and the choice of law rule for divorce by litigation, which is article 27, the scope of the choice of law rule for the personal relation between husband and wife, which is article 23, and the scope of the choice of law rule for marital property system, which is article 24, and the relationship between the choice of law rule for marital property system and the choice of law rules for property. In order to solve abovementioned issues, on the one hand, The Act On Private International Law of The ROK can be used for reference, in terms of the divorce by litigation, an architecture of principles, which is article 27, and exceptions, which is article 23 or article 24, shall be formed. On the other hand, the scope of article 23 may include the condition for divorce by litigation, the scope of article 24include community debt, in the disputes concerning the marital property, article 24 shall be applied in priority, the relationship between article 26 and article 27 is exception and principle, which means that only when the spouse dissolve the marriage by litigation, provided that there was no agreement for divorce, article 27 may be applied.