论欧盟承认外国收养判决条件之新发展

The New Development of the Conditions of Recognizing Foreign Adoption Judgments in EU

欧盟承认外国收养判决条件之设定,不仅影响到外国收养判决在欧盟的效力,而且关乎被收养儿童的切身利益。欧盟承认外国收养判决条件之新发展表现为:第一,欧盟逐步淡化间接管辖权审查,而且新设定了跨国承认国内收养判决的间接管辖权审查标准;第二,欧盟在司法实践中将人权保护作为独立的承认外国收养判决的条件。《欧洲人权公约》中的家庭生活权、非歧视权、公正审判权、财产权等都被纳入承认外国收养判决的条件。以上新发展总体上体现了"保护性便利承认"模式,我国承认外国收养判决时也有必要贯彻保护性和便利性承认相结合的理念。

The setting of conditions of recognizing foreign adoption judgments,which not only affects the effectiveness of the foreign adoption decision in the EU,but also correlates with the interests of adopted children.The new development of the conditions of recognizing foreign adoption judgments in EU has mainly reflected in the following aspects:Firstly,there is a breakthrough in jurisdictional conditions for recognizing foreign adoption judgments in EU.Jurisdiction review is gradually weak when EU recognizes general foreign adoption decisions,and cross-border recognition of domestic adoption orders jurisdiction examination standards are also laid down.Secondly,EU also has made progress in public policy conditions for recognizing foreign adoption judgments.The protection objects of EU public policy in transnational adoption are dual.Thirdly,in judicial practices,EU regards the protection of human rights as an independent condition for recognition of foreign adoption decisions.The family life rights,non discrimination rights,fair trial rights and property rights in the European Convention on human rights are brought into the considerations of the recognition of foreign adoption judgments.In general,the above new advancement of the conditions of recognizing foreign adoption judgments in EU reflects the protective and convenient recognition mode.It is also necessary for China to implement the notions of conservative and convenient recognition when recognizing foreign adoption judgments.