向国外追索儿童扶养费问题初探

On Recovery of Children’s Maintenance from Abroad

作为《儿童权利公约》当事国,中国有义务就儿童向国外扶养人追索扶养费事宜作适当安排。目前,中国在立法和缔约实践中均未对此作出专门处理,而是适用与普通扶养案件相关的法律和条约。鉴于儿童的特殊情况,上述旨在解决普通扶养案件的法律和条约未能对儿童向国外扶养人追索扶养费案件提供完善的解决途径。国际社会曾就此类案件的解决制订了若干国际公约,对各国主管机关之间的司法及行政合作、案件的管辖权、法律适用及判决的承认与执行作了规定,但这些公约执行的情况不甚理想。国际社会正在酝酿起草新的公约。一些国家之间就此缔结了一些双边条约,建立了以行政合作为主核心的制度,取得了较好的效果。中国尚未对外缔结这一领域的双边或多边条约。目前,加入现有多边条约对中国不是一个理想的选择。中国似应更积极地支持在这一领域缔结一项多边国际公约,并可考虑与有关国家缔结双边条约。

China,as a state party to the Convention on the Rights of the Child,is obligated to make proper arrangements with regard to the recovery of maintenance obligations from abroad in respect of children.For the time being,there is no specific arrangements relating to this issue in the legislative and treaty-making practice of China.Cases of this nature are dealt with pursuant to laws and treaties governing maintenance obligations in general.Due to the special situation of children,laws and treaties,whose objects are resolving maintenance obligation cases in general,appear to be imperfect in dealing with cases where children seek to recover maintenance obligations from abroad.In its efforts in resolving cases in this respect,the international community has adopted several international conventions,containing provisions concerning administrative and judicial cooperation between competent authorities of States,jurisdictions,applicable laws,recognition and enforcement of court judgments.The implementation of those conventions has been less than ideal.The international community is considering the possibility of elaborating a new convention in this area.Some States have opted to conclude bilateral treaties to established regimes based mainly upon administrative cooperation,with success to a large degree.As far as China is concerned,presently,accession to existing multilateral conventions is not the most attractive choice.It seems more practical for China to take a practive role in supporting the drafting of a new multilateral convention and to consider concluding bilateral treaty with States concerned.