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|Other Titles:||Taiwanese Private International Law on Inter-country Adoption|
Inter-country Adoption;Cumulative Application;Distributive Application;Hidden Renvoi;International Jurisdiction;Jurisdiction based on Domicile;Adoption When the Spouses are in different nationality;Taiwanese Private International Law Article 54;Taiwanese Private International Law Article 18
|Issue Date:||2016-06-17 11:36:21 (UTC+8)|
Under the current choice-of-law rules on inter-country adoption in Taiwanese private international law, the adopter and the child shall be governed by his/her/their national law, respectively. The application of this rule is known as a distributive approach and the rule was made by reference to the old Japanese private international law. In 1989, Japanese private international law revised the choice-of-law rule on intercountry adoption, abandoned the distributive approach based on the reason that, the distributive application tended to be construed as a cumulative approach by Japanese courts. As a result, inter-country adoption was not easy to be established in Japan due to the fact that the adopter was not only governed by his/her national law, but also was governed by the child’s national law, and vice versa under the judicial practice in Japan. Therefore, the applicable law to the intercountry adoption in Japanese private international law was replaced by a new rule that the requirements of inter-country adoption shall be governed solely by the national law of the prospective adoptive parents. The situation that occurred in previous Japanese judicial practice is now taking place in Taiwanese judicial practice. Most of the Taiwanese courts construed the choice-of-law rules on international adoption into cumulative approach. As a result, the adopter is governed not only by his/her national law but also governed by the child’s national law, and vice versa. Unfortunately, the newly revised choice-of-law rules on inter- country adoption in Taiwanese private law maintain the same approach as the current rule. In addition to the issue above-mentioned, some Taiwanese courts apply hidden renvoi in cases in which the national law of parties are common-law which takes a jurisdictional approach to adoption. This article argues that the application of hidden renvoi to the jurisdictional approach not only lacks a theoretical basis but also contradicts the tenor of renvoi.
Chengchi law review
|Appears in Collections:||[法學評論 TSSCI] 期刊論文|
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