依法解决国籍冲突途径新探

1980年制定的《中华人民共和国国籍法》为解决国籍冲突问题,采取了不承认双重国籍的原则;虽然该立法原则在我国当时的历史条件下起到某些积极作用,但随着港澳的回归和旅居海外新华侨的日益增多,其中的某些原则已经不利于国籍冲突问题的解决.比较和借鉴其他国家的国籍立法和司法实践,结合中国实际,现行国籍法的修改可遵循以下原则:(1)通过立法赋予国籍冲突的当事人以选择国籍之权利;(2)废除僵化的一人一籍原则,承认符合法定条件者的双重国籍;(3)尽可能通过谈判协商,以签订双边条约的方式来解决国籍冲突问题.

On New Exploratory Ways of Settling the Nationality Conflicts

In order to settle the nationality conflicts, Nationality Law of the People's Republic of China in 1980 adopts the principle of non-recognition of double nationality. Although this principle to some extent played a positive role in history, at present, some of the provisions seem to revolt against the respect for human rights and do harm to the settlement of the nationality conflicts. Therefore, there is an urgent need for the Chinese Nationality Law to be amended.At the beginning, through two real cases, the authors analyze some problems the present Nationality Law might encounter. Then the paper expounds the necessity of amending the Nationality Law in the following four aspects:(1) More and more overseas Chinese are in the dilemma of choosing the nationalities between the Chinese and those of the countries of residence, which involves not only the conflict between sense and sensation, but also the struggle for a better life;(2) The return of Hong Kong and Macao brings about embarrassment to our country in the issue of nationality, the abnormal co-existence of Chinese nationality and the foreign passport;(3) Amending the Nationality Law is to safeguard our ordinary nationals' interests to the greatest extent;(4) It will promote our national interests in some ways.Next, after referring to the legislation and judicial practice on nationality from other countries, the authors find that double nationality is now well accepted and common in those countries.Besides, the principles and practices of private international law and public international law show clearly that neither the stipulation of one nationality for one person nor the acceptance of double nationality in the domestic law breaches the international law.Summarizing the legislation of the foreign countries, together with the actual situation in today's China, the authors conclude that the present Nationality Law of the People's Republic of China can be amended according to the following three principles:(1) to give the party involved in the nationality conflicts the right to choose his or her nationality by statutes;(2) to abolish the rigid principle of one nationality for one person and admit the double nationality of the qualified one;(3) to try to settle the nationality conflicts by signing bilateral treaties through negotiation.