A Study on 1980 and 1996 Hague Convention

• Main Authors: Tsai Wan-Ching, 蔡宛靜
• Other Authors: 陳榮傳
• Format: Others
• Language: zh-TW
• Published: 2008
• Online Access: http://ndltd.ncl.edu.tw/handle/51974897869330218886

碩士 === 國立臺北大學 === 法律學系一般生組 === 96 === In an effort of the international community to cope with the increasingly serious problem of the kidnapped children and to protect the rights of the child, especially the minors, from being inexplicably sacrificed in the high mobility of the globalized society, the Hague Conference on Private International Law adopted three important convention in the late 20th century which opens a new page in the international unity of the child protection norms. We, as a member of the international community, cannot place ourselves outside of the protection of children. Therefore, in the hope of having a better understanding of the trend of the child protection in the international community through the study and its application of " The Hague Convention on The Civil Aspects of International Child Abduction ", " Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children ", enable us to bear on the issue in line with international trends, find the best protection for children, leaves a happy and stable growing environment for our children. First, this paper begins with the purpose and the enactment of the Hague Convention enacted in 1980 to explore the application of the Convention, the designation of central authority and its duty, the return of illegally transferred or constrained children, visitation rights, the general and final provisions, and seek possible solution to the flaws of the Convention in an effort to expand the function of the Convention (Chapter 2). Second, base on the framework of the 1996 Hague Convention, discussing the scope of its application, the jurisdiction rights, the finding, application, recognition and enforcement of the applicable law, international cooperation, the general and final provisions, and the description of the dispute over the explanation and application of each provision (Chapter 3). In the mean time, take the report of the Hague Conference on Private International Law in March 2007 to the fifth session of the Special Committee held in October and November 2006 as basis. finding the differences between the theory and practice by reviewing the operation of the 1980 Hague Convention and the discussing the effect brought by the Hague Convention of 1996 as well as observing its development in different nations and the relations with non-parties (Chapter 4). Finally, projecting the aforementioned introduction of the Hague Convention and its use to the legal system in Taiwan, not only in the hope of revealing the imperfectiveness in the laws of child protection, but also to inspire current practice and future enactment. At last, take the inspiration brought by the new Brussels Ⅱ rule as a summary (Chapter 5). As a country not considered as sovereignty independent internationally, we are almost unlikely to accede to the Convention. Under the existing framework of the Convention, it is not allowed to accede to the convention in the form of "organization" or "individual practice on the jurisdiction." The only possibility not to be isolated in the international development is through non-governmental organizations as observers applying to participate in the agenda of the Hague Conference on Private International Law. However, the possibility remained passive in the circumstances. Therefore, this paper suggested the positive approach at this stage, should be through domestic legislation in a manner that will be the spirit of the provisions of the Convention and its implementation in the legal system of Taiwan. In this way, the same results of ensuring the effective exercise of parental authority and children's rights protection could be reached in coherence with the 1980 and the 1996 Hague Convention.