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An Empirical Study of Consular Marriage Registration
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Xu Yuhong
2013年2期
An Empirical Study of Consular Marriage Registration
Xu Yuhong
Official of the Consular Department of the Ministry of Foreign Affairs

An Empirical Study of Consular Marriage Registration
  An Analysis of “The Law of the People's Republic of China on the Application of Law in Foreign-related Civil Relations”
  I. Introduction

  Marriage registration includes marriage registration, divorce registration and remarriage registration. Consular marriage registration refers to the activity of the diplomatic or consular institutions of a state to register the marriage and issue marriage certificates to a couple upon the application of the parties to the marriage in accordance with the laws and regulations of the sending state under the precondition of not violating the laws and regulations of the host state. With China’s reform and opening up, the communication between Chinese and foreigners is getting more and more frequent and there are more and more marriage registration cases handled by Chinese consuls abroad. According to the statistics, there are 9576 consular marriage registration cases handled by Chinese consuls abroad in 2011 for the parties to the marriage with Chinese nationality, an increase of 22.6% compared with that in 2010, and an increase of 61.5% compared with that in 2006. it is shown in practice that as an integral part of international marriage legal system, the legal system of consular marriage registration plays an active role in the advocacy and practice of the ideology of building a harmonious world. Meanwhile, there are still some problems to be sorted out and solved.

  At present, Chinese consular marriage registration is mainly based on the international conventions that China has concluded or acceded to, international practice, bilateral consular treaties (agreements) concluded between China and foreign states, and the laws and regulations of the host states as well as Chinese laws and regulations. So far, there are no specific regulations about consular marriage registration in Chinese domestic laws and regulations. Chinese marriage legal system and even international marriage legal system need to be improved.

  On the one hand, with regard to the consuls of Chinese embassies and consulates abroad (“Chinese consuls abroad” for short hereinafter), Article 19 of the Supplementary Provisions of Chapter 6 of Marriage Registration Ordinance effective as of October 1, 2003 provides that “The embassies and consulates of People's Republic of China can handle marriage registration for Chinese citizens dwelling in the host states in accordance with the relevant provisions of this Ordinance.” Therefore, Chinese consuls abroad can handle marriage registration, divorce registration and remarriage registration for Chinese citizens dwelling in the host states.

  On the other hand, with regard to the consuls of foreign embassies and consulates in China (“foreign consuls in China” for short hereinafter), paragraph 4 of Article 19 “marriage” of Chapter 6 “marriage and family” of The Proposed Law of the People's Republic of China on the Application of Law in Foreign-related Civil Relations provides that “The foreigners with the same nationality or different nationalities can get marriage registration within the territory of the People's Republic of China by the consuls of their home states in accordance with the laws of the home states based on the international treaties in force on the People's Republic of China or the principle of reciprocity.”

  Unfortunately, this provision finally failed to come into effect. That is to say, there is no such a provision of consular marriage in The Law of the People's Republic of China on the Application of Law in Foreign-related Civil Relations effective as of April 1, 2011.

  International community relations can generally be divided into three independent and interrelated aspects — international political relations, international economic relations and international civil and commercial relations, which are manifested in international public law, international economic law and international private law respectively. Therefore, it’s advisable to sort out and solve the existing problems of consular marriage registration from the perspective of international public law and international private law. This paper will analyze and discuss a number of issues such as the basic principles of consular marriage registration, two types of jurisdiction and legal effects with some examples and comments on relevant provisions of The Law of the People's Republic of China on the Application of Law in Foreign-related Civil Relations. Hopefully, it can shed some light on further improving Chinese marriage legal system and international marriage legal system.

  II. The basic principles of consular marriage registration

  The so-called “basic principles” refer to the principles applied in the whole legal system or a legal department that can reflect the fundamental value of the law. The fundamental value of consular marriage registration refers to the personal and property rights and interests of the parties in their home states based on legitimate consular marriage, so as to promote the harmonious development of individuals, states and the international community.

  1. The basic principles of consular marriage registration are stipulated in international conventions. So far, Vienna Convention on Consular Relations is the only international convention on consular relations in the world. The convention was signed at the Conference of the United Nations on Plenipotentiaries on Consular Intercourse and Immunities in Vienna on April 24, 1963 and came into force on March 19, 1967. On July 3, 1979, the Chinese government turned the entry document without reserved terms to the United Nations and the Convention came into force in China on August 1, 1979. Paragraph 6 of Article 5 of the Convention provides that consular functions include “acting as a notary, civil registrar and the like, and handling certain administrative affairs, but to the extent not prohibited by the provisions of the laws and regulations of the host state”. According to the relevant provisions of the Sino-foreign bilateral consular treaties (agreements), “civil registration” mainly refers to the registration handled by a state's consuls abroad about some matters such as birth, death, and marriage of the citizens of the sending state who live in the host state. Accordingly, the basic principle of consular marriage registration as one of consular functions is not to be prohibited by the provisions of the host state. Specifically, “the consuls abroad should handle marriage registration for the parties in accordance with the laws and regulations of the sending state under the precondition of not being prohibited by the provisions of the host state.”

  2. The basic principles of consular marriage registration are extended to bilateral treaties. In terms of the signing order of the Sino-foreign bilateral consular treaties (agreements), The Consular Treaty between the People's Republic of China and the United States of America signed on September 17, 1980 in Washington is the first consular treaty signed between China and a western capitalist state. Since then, a great number of Sino-foreign bilateral consular treaties (agreements) have been entered into. As of the end of August 2012, the Chinese government and foreign governments have signed or re-signed 48 bilateral consular treaties (agreements). Except for the Consular Treaty between the People's Republic of China and German Democratic Republic (before being revised), the Consular Treaty between the People's Republic of China and the United States of America, the Consular Treaty between the People's Republic of China and the Republic of Iraq, the Consular Agreement between the Government of the People's Republic of China and the Government of Canada, and the Consular Agreement between the Government of the People's Republic of China and the Government of the Federal Republic of Nigeria, all the other 43 consular treaties or agreements have provisions of marriage registration. The basic principles of consular marriage registration are also indicated in the relevant provisions. For example:

  Article 10, paragraph 1 (4) of The Consular Treaty between the People's Republic of China and the Republic of India provides that consular officials in the consular district are entitled to “handle marriages registration and divorce registration for the parties who are both citizens of the sending state in accordance with the laws of the sending state, but shall not violate the laws and regulations of the host state”.

  3. The basic principles of consular marriage registration are reflected in the handling of cases. The provision and extension of the basic principles in international conventions and bilateral treaties indicate that consular marriage registration involves a kind of inter-state relationship, and the handling of specific cases reflects a kind of public relationship. Examples are as follows:

  * Example 1: In 2001, W, a Chinese embassy staff in State R and his girlfriend X who made the special trip to State R applied to the embassy for marriage registration. According to the relevant provisions of the Marriage Registration Ordinance, the embassy can handle marriage registration for them. However, the law of state R prohibits foreign consuls in the state from fulfilling marriage or birth registration functions. Thus, according to the “basic principles” of consular marriage registration, the embassy did not approve of the application for marriage registration of the parties.

  From another perspective, if the Chinese consul in State R handles marriage registration for the above- mentioned parties, the marital relationship is void in State R and a third state except in China. The consequence is that it will be difficult for Chinese consuls abroad to legitimately protect the rights and interests of the parties in foreign states arising from consular marriage and family relations.

  * Example 2: The Netherlands is the first state in the world to legalize same-sex marriage. The law provides that since January 1, 1998, two people of the same sex or opposite sexes are allowed to register as a “partnership”, and its legal force is basically the same with that of marriage. Nevertheless, the Dutch consul in China is still not expected to handle partnership registration for the parties of the same sex. Since the marriage legal system of “monogamy, a voluntary union between a man and a woman” is practiced in China as the host state, if the Dutch consul handles partnership registration for the parties of the same sex, it will not be acceptable to Chinese society due to its contradiction to Chinese law, public order and morals, which will be detrimental to the rights and interests of the parties in China arising from their partnership.

  So to speak, the basic principles of consular marriage registration have been further confirmed in the handling of the above-mentioned cases, which fully demonstrates its binding effect on the inter-state relationship or public relationship. In particular, the principle of “national jurisdiction” in terms of international law should also be applied to it.

  III. Two types of jurisdiction of consular marriage registration

  The jurisdiction of a state is the concrete manifestation of the exercise of its sovereignty over its territory and citizens. The jurisdiction of a state can be divided into four categories: territorial jurisdiction, personal jurisdiction, protective jurisdiction, and universal jurisdiction. In practice, the two types of jurisdiction involved in consular marriage registration refer to territorial jurisdiction and personal jurisdiction. These two complementary types of jurisdiction together constitute the two supporting points of the basic principles of consular marriage registration. In principle, territorial jurisdiction takes precedence of personal jurisdiction. In fact, personal jurisdiction is superior to territorial jurisdiction.

  1. Priority of territorial jurisdiction over personal jurisdiction. Based on the principle of territorial jurisdiction, the state has the right to govern its own citizens, foreigners and stateless persons dwelling in the state. The territorial jurisdiction of consular marriage registration is explicitly expressed in the Sino-foreign bilateral consular treaties (agreements) that either Chinese consuls abroad or foreign consuls in China can only handle marriage registration upon the application of the parties under the premise of not violating the laws and regulations of the host state. For example, paragraph 1 (5) of Article 27 of the Consular Treaty between the People’s Republic of China and the Mongolian People's Republic provides that consular officials in the consular district are entitled to “handle marriage and divorce registration and issue relevant certifying documents for the parties who are both citizens of the sending state under the precondition of not violating the relevant laws and regulations of the host state”.

  In other words, the consuls shall handle marriage registration under the precondition of not violating the legal principles of the host state. Otherwise, it will be subject to various restrictions of territorial jurisdiction. Examples are as follows:

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