The application of law to the substantive requirements of foreign-related marriage faces an inherent tension arising from the dual attributes of marriage as both private and public. Article 21 of the Law of the People’s Republic of China on the Application of Laws to Foreign-Related Civil Relations adopts a progressive conflict rule proceeding in the order of “the common habitual residence—the state of common nationality—the place of celebration of the marriage,” which represents an advance in legislative technique; however, its exclusive structure of application harbors paradoxes in protecting the reasonable expectations of the parties and the stability of status, and the disconnection between the second and the third tiers may leave the applicable law unattainable. A more fundamental problem lies in the fact that this provision treats the “consent provisions,” which serve private autonomy among the substantive requirements of marriage, and the “social-order provisions,” which safeguard the bottom line of social ethics, as a homogeneous whole subject to the same choice-of-law rule, failing to distinguish the divergent value objectives and application logics of the two categories of provisions. On the basis of an analytical framework built upon the dual attributes of marriage, the consent provisions, which can be cured by the subsequent ratification of the parties, should be distinguished from the mandatory social-order provisions, which cannot be altered by individual will, and the law of the place of celebration and the law of the place where recognition is sought should be applied to them respectively. In concrete application, practical difficulties must be addressed, including the ambiguity of classification, the admixture of applicable laws, the expansion of judicial discretion, and the blurred boundary between “non-recognition” and “absolute nullity”; these may be remedied through such paths as the typologization of judicial interpretation, the establishment of an order of application, and the clarification of legal consequences. The choice-of-law rule on the validity of foreign-related marriage should seek a dynamic equilibrium between the stability of individual status and the ethical bottom line of the social community, so that conflict rules may genuinely respond to the reasonable expectations of the parties and to the legitimate concerns of public order.
foreign-related marriage; conditions for marriage; application of law; connecting points.
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