Are international adoption and foreign adoption the same concept?

First, the concept of transnational adoption law

Cross-border adoption law refers to the sum of various legal norms regulating cross-border adoption relations. Cross-border adoption is a very complicated process, which requires certain legal rules to coordinate and standardize cross-border adoption, adjust the relationship of cross-border adoption, and prevent the abuse of cross-border adoption rights and international child trafficking. However, with the emergence and development of international adoption, international adoption law came into being to adjust the adoption relationship with international factors. The object of the adjustment of transnational adoption law is the adoption relationship with international factors, which can be called foreign adoption relationship or "adoption relationship beyond nationality or national boundaries" from the perspective of a country. (Dictionary of International Law, edited by Yu Xianyu), Hunan Publishing House, 1995, p. 408. This kind of adoption relationship with foreign factors means that at least one of the adoption parties, adoption contents, legal facts and other factors is related to foreign countries. Most scholars in our country advocate that the adoption relationship with foreign factors means: "At least one of the factors such as the adopter and the adoptee and the legal facts about adoption is related to foreign countries." (Meng Xianwei, Wang Yufa: Foreign-related Marriage, Family and Law, Guangdong People's Publishing House, 1995, p. 93. Specifically, if one or both sides of the adoption relationship are foreigners or stateless, or their domicile or habitual residence is in a foreign country, according to a broad interpretation, as long as the adopter or adoptee has foreign nationality, statelessness or their domicile or habitual residence is in a foreign country, it belongs to the category of transnational adoption relationship. According to the narrow interpretation of the Convention on Intercountry Adoption 1993 adopted by The Hague Conference on Private International Law, only countries whose habitual residence status is different from that of the adoptee can be regarded as intercountry adoption or foreign-related adoption (see J Doek et al. (eds.), Migrant Children, Martinus, Niehoff Publishing House, 1996, pp.? 82-84? )。 In addition, the legal fact that the rights and obligations of the adoption relationship arise, change or disappear abroad is also the adjustment object of the transnational adoption law. For example, the completion of the adoption abroad, the establishment of the adoption relationship abroad, or the dissolution of the adoption relationship abroad can all be regarded as the adjustment scope of the transnational adoption law. It can be seen that the international factors or foreign-related factors in the adoption relationship regulated by the international adoption law are not single, that is, there are not only foreign-related factors in one link, but also many links, that is, foreign-related factors can exist in many links of adoption, and as long as there are foreign-related factors or international factors in one link, it is enough to constitute an international adoption relationship or a foreign-related adoption relationship. The adoption relationship with foreign or international factors is still a broad civil legal relationship. Therefore, to some extent, the transnational adoption law with this relationship as the adjustment object should be an important part of private international law. (see I Delupis, international adoption and conflict law. Stockholm, 1976, pp66-75；; Dehe. Nova, Adoption in Comparative Private International Law, Receil, 196lpp75- 158) In most civil law countries, family law with adoption clauses is regarded as a part of the civil code, and France, Germany, Switzerland and Japan all adopt this system. In its private international law, it has made specific provisions on the legal application of foreign-related adoption relations. There is no civil code in common law countries, and the adoption relationship is often stipulated in the form of a single law, but it is still included in the civil legal norms, and most of them appear in the form of private law. In most socialist countries, labor relations and marriage and family relations are separated from civil law with reference to the model of the former Soviet Union and regulated by separate legislation, such as the Marriage and Family Code of the Soviet Union and the Family Code of Romania. The laws regulating the adoption relationship are listed separately from the civil law. No matter what legislative form is adopted for adoption, most countries have stipulated foreign-related adoption or transnational adoption in their private international law. It can be seen that the transnational adoption law belongs to the category of private international law as a whole, but some characteristics of it in international administrative law, international human rights law and public international law cannot be ignored or denied. With the adoption legislation of the international community emphasizing the principle of protecting the best interests of children and strengthening the intervention mechanism of public power, some scholars advocate that the transnational adoption law should be included in international administrative law, international human rights law and even international public law. (See E. M. Hohnerlein, International Adoption and Adoption, Mullich, 1988, pp9-11; J. H. A. VanLoon, "The Importance of International Cooperation to Clarify the Growing Private International Law", in Forty Years Later: the Evolution of Private International Law in Europe after World War II, Amsterdam, 1990. Pp. 10 1 etc.) This view ignores the inherent attribute of international adoption relations to a certain extent, that is, the civil legal relationship between private individuals eventually established, but only classifies them from the characteristics of emphasizing the intervention and supervision of judicial administrative organs and protecting children's human rights embodied in international adoption legal norms, which is suspected of being partial and fails to see the international adoption law clearly. From the object, nature and basic content of transnational adoption law, it shows the most prominent characteristics of private international law. It can even be said that private international law and transnational adoption law belong to a species relationship, and private international law covers transnational adoption law. The transnational adoption law takes the adoption relationship with international factors as the adjustment object, and takes the substantive regulations, procedural regulations and even the applicable rules of law as the content. It is different from the domestic adoption law, the public international law which takes the state as the main body to adjust the legal relationship between sovereigns, and the international administrative law which limits the jurisdiction of domestic administrative organs and the scope of application of domestic administrative law (Li Haopei: Concept and Origin of International Law). ) is also different from "dealing with the protection of the rights of individuals and groups guaranteed by the international community from government violations and dealing with the international human rights law that promotes the development of these rights." ((America) Thomas? Introduction to International Human Rights Law by Bergenthal, translated by Pan, China Social Sciences Press, 1995, p. 1. As far as the whole legal system is concerned, although there are some links, overlaps or overlaps between transnational adoption law and public international law, international human rights law, international administrative law and even international criminal law, their essential characteristics and contents are still quite different. Cross-border adoption law belongs to the category of private international law and is more suitable as a part of private international law. Cross-border adoption law is an organic whole that integrates substantive norms, procedural norms and even sub-norms, and is an inseparable part of private international law.

Second, the origin of transnational adoption law

Like other laws, the origin of transnational adoption law can be divided into two categories: substantive origin and formal origin. The substantive origin of the law of transnational adoption refers to some factors that affect the content of such rules in the process of the law of transnational adoption, such as legal consciousness, justice concept, joint relationship, public opinion, class relationship, customs and habits, religious beliefs and so on. The similarity of these factors is non-legal. They are political, economic, sociological or psychological facts, and the research in this field mainly belongs to the tasks of other social sciences. The author mainly studies the formal origin of transnational adoption law, that is, the rules of transnational adoption law have some external form, that is, the expression form of transnational adoption law norms. This is also the basis or symbol of the formation of transnational adoption law. The adjustment object of transnational adoption law is the foreign-related adoption relationship beyond the country or nationality field, and in its development process, international unified norms have gradually emerged. This determines that the origin of transnational adoption law is twofold, that is, it mainly includes domestic legislation and international legislation. Some countries regard judicial precedents of domestic courts and international practices adopted by the international community as important sources of cross-border adoption laws.

(1) As the source of transnational adoption law, domestic legislation refers to the laws, decrees, regulations, rules and other normative documents formulated by various countries to adjust the relationship between foreign adoption. International adoption is closely related to the interests of the countries concerned, and it is a common practice for countries to coordinate international adoption through domestic legislation. The legislation of international adoption in various countries has a trend from simple to detailed. This kind of domestic legislation is often incorporated into the civil code or a separate adoption law or into private international law, and some of them are also stipulated in the nationality law or immigration law. For example, Article 80 1 of the Japanese Civil Code stipulates the mode of adoption among Japanese in foreign countries, Article 19 of the old Japanese Law and Article 20 of the newly revised Japanese Law stipulate the elements and effects of foreign adoption, and Articles 19 and 23 of the Japanese Nationality Law stipulate naturalization or naturalization due to adoption; Article 22 of the German Civil Execution Law makes specific provisions on the legal application of foreign-related adoption; The Netherlands adopts the form of separate legislation, and the Dutch Law on Adoption of Foreign Women has made very detailed provisions on the conditions, effectiveness, procedures and supervision of foreign adoption, with a total of 34 articles. The Adoption Law promulgated by Finland 1985 makes more detailed provisions on the establishment, approval, recognition and revocation of foreign-related adoptions in Articles 19 to 24 in Chapter IV, Articles 25 to 27 in Chapter V and Articles 37 to 47 in Chapter VII. In addition, in 1985, Finland also promulgated the Act on the Finnish Intercountry Adoption Committee, which was incorporated into the Adoption Amendment Act of New Zealand 1965. Article 17 stipulated the effect of overseas adoption, while the former Czechoslovakia 1964 Private International Law Article 22 of Polish private international law 1966 and article 22 of Polish civil procedure law 1 10 stipulate the legal application of foreign-related adoption. Sweden's legislation on intercountry adoption is quite complete, including the Regulations on Legal Relations of International Adoption, the Regulations on Recognition of Foreign Adoption, the Law on Assistance in Intercountry Adoption J98 1, 1979, and the Rules of the Swedish Domestic Committee for Intercountry Adoption. Article 344 of the Belgian Civil Code stipulates "the special conditions and effects of international adoption and the recognition of adoptive parent-child relationship obtained in foreign countries"; Article 26 of the Austrian Federal Private International Law (1979) makes specific provisions on foreign adoption. The adoption law promulgated by Argentina 197 1 stipulates the "effectiveness of overseas adoption" in Chapter V, and Article 35 of the private international law promulgated by Chile 1939 clearly stipulates the legal application of foreign-related adoption. Articles 38 to 465,438+0 of Chapter V of Italy's 65,438+0995 Law on the Reform of Private International Law make very specific provisions on the conditions, establishment, revocation, adoption management right and recognition of foreign awards related to adoption. Articles 30 to 33 of Romanian Law 105 on adjusting the legal relationship of private international law clearly stipulate the substantive elements, formal elements and legal application of the effectiveness of foreign-related adoption, including the Indian Adoption and Support Law for degree D 1956 and the Guardianship Law 1980. Articles sl and 52 of Brazil's Juvenile Code 1979 also belong to the norms of international adoption law. The adoption law promulgated by 1988 has provisions on international adoption, and the amendment bill of the Ministry of Justice 199 1 further improved international adoption. Article 136 of the Bulgarian Family Law (1985) provides for intercountry adoption. For the legal norms of foreign adoption in China, see Article ZI of the Adoption Law of People's Republic of China (PRC) (1998) and the Implementation Measures for Adoption of Children by Foreigners in People's Republic of China (PRC) (1993). It can be seen that there are various forms of domestic legislation on intercountry adoption in various countries, some of which exist in the civil code, some in a separate family code or adoption law, some in the norms of private international law, and some in the civil procedure law. All these provisions constitute a rich domestic legislative form of transnational adoption law.

(ii) International legislation

In terms of international legislation, due to the rapid development of global social productive forces, the popularization of market economy and the increasingly developed transportation industry, personnel exchanges between countries have become increasingly frequent, and the number of international adoptions that have not followed has not only increased day by day, but also gradually expanded. However, most adoption legislation in various countries is not formulated by their own legislatures according to their own social, political, economic and cultural development, and has made different provisions on international adoption. In order to promote the smooth and healthy development of cross-border adoption, eliminate legal obstacles or obstacles in cross-border adoption, equally protect the legitimate rights and interests of domestic and foreign adoption parties, especially safeguard the best interests of children, countries all over the world have actively cooperated in the field of cross-border adoption and signed a series of multilateral and bilateral treaties, making international treaties an extremely important source of cross-border adoption law.

1. Bilateral treaties

Bilateral treaties or judicial assistance agreements on foreign adoption concluded by the two countries to promote and protect the mutual adoption of citizens of the two countries occupy an important position in international adoption law and are one of the sources of international adoption law. For example, 198 1 Protocol on Cooperation in Intercountry Adoption signed by Australia and the Philippines, 1975 Treaty on Intercountry Adoption signed by Sweden and the Philippines, 1975 Treaty on Cooperation in Bilateral Adoption signed by the Netherlands and the Philippines, and 1976 Agreement between Ecuador and Sweden. Norway and the Philippines signed a bilateral adoption treaty in 1982, Ecuador and Canada signed a cooperative adoption treaty in 1984, Greece and Sweden signed a series of bilateral adoption treaties between 1983 and 1985, and China signed agreements on judicial assistance in civil and commercial matters with Spain, Hungary, Belgium and other countries. Although these bilateral treaties on intercountry adoption are only binding on two contracting States and constitute "special intercountry adoption" between contracting States, they are not universally binding. However, if some rules in bilateral adoption treaties are generally accepted by a large number of bilateral treaties, it may constitute an internationally accepted practice and be adopted by many countries, which may constitute a legal rule of transnational adoption with certain universality or universality.

2. Multilateral treaties

Multilateral treaties on intercountry adoption can be divided into regional multilateral treaties and universal multilateral conventions. No matter what form of convention, it is an important source of transnational adoption law.

(1) Regional multilateral treaties

Regional international adoption treaties refer to multilateral treaties signed by regional national organizations to coordinate international adoption among member countries. The earliest treaties are 1928 Inter-American Bustamante Code and 1940 Montevideo Convention on International Civil Law, both of which have legal norms on international adoption. In addition, the Nordic countries signed the Convention on Certain Provisions of Private International Law on Marriage, Adoption and Guardianship in Stockholm on 1939, the European Convention on Adoption of Children signed by Council of Europe on 1967, and the Inter-American Convention on Adoption of Minors signed by the Organization of American States on 1984.

(2) Universal multilateral conventions

International multilateral conventions on transnational adoption law mainly include The Hague Conference on Private International Law and some conventions adopted by the United Nations. Specifically, it includes The Hague Conference on Private International Law (1956), Convention on Recognition and Enforcement of Compulsory Judgments for Child Support (1958), Convention on the Rights of Institutions for the Protection of Minors and the Application of Law (196 1) and Convention on Adoption Jurisdiction, the Application of Law and the Recognition of Judgments (. 1980 Convention on Civil Aspects of International Illegal Child Abduction, 1993 Convention on Protection of Children and Cooperation in Intercountry Adoption and 1989 United Nations Convention on the Rights of the Child are universal international conventions on intercountry adoption, and they are also universally binding international legal norms in the sources of intercountry adoption law.

In addition, some normative documents of the United Nations General Assembly are also one of the sources of transnational adoption law, such as the United Nations 1986 Declaration on Social and Legal Principles of Child Protection and Welfare, especially Domestic and International Foster Care and Adoption, which can be regarded as the source of transnational adoption law. Moreover, the sources of international adoption law also include international practices and precedents of some countries. For example, the Indian Supreme Court 1984' s judgment on Lax mi Kant Pandey in February established the basic norms of India's international adoption law. (See eliezer Vijaf. International adoption. Holland. 1995.P.3 1) Different countries have different attitudes towards whether precedent can be used as the legal source of transnational adoption law. The precedents of common law countries, like domestic legislation, are the domestic sources of transnational adoption law. Civil law countries generally can't adopt precedent, so few countries regard precedent as the source of transnational adoption law. China doesn't think precedent is the source of law. However, from the perspective of the whole international community, the influence and function of precedent on the origin of transnational adoption law can not be ignored.

From the above analysis, it can be seen that with the emergence and development of transnational adoption, the transnational adoption law, which takes the adoption relationship with international factors or foreign-related factors as the adjustment object, has also emerged, and has been continuously developed and improved in the international legal unification movement. Although there is no unified international adoption code so far, it is hard to say whether it will appear in the future, but we can't deny the existence of international adoption law because of this, just as we can't deny the existence of private international law because the international community has not yet unified private international law code. International adoption law is an organic legal system composed of relevant domestic laws and international laws to adjust the relationship between international adoption and foreign adoption. As far as its content and scope are concerned, its basic framework should generally include a series of supplementary norms, such as the substantive elements, formal elements, jurisdiction, recognition and implementation, effectiveness, legal application or sudden norms of international adoption, etc. With the further development of international cross-border adoption, the unification of cross-border adoption law has become an increasingly obvious trend in the development of cross-border adoption law, and new international norms on adjusting cross-border adoption relations will continue to emerge.