China Divorce Proceedings The Standard

The divorce system is not only an important part of the Marriage Law, but also the chapter in the greatest changes and of most controversy with the development of the times. Since the universal realization of the divorce freedom around the world, no-fault doctrine has gradually replaced the fault doctrine, being the principles of legislation of the standard of litigious divorce in the modern counties. no-fault doctrine is also applied to the issues of litigious divorce in our country, however, the dispute between the theories of"breaking up of emotion"and"breaking up of marriage relationship"regarding the standard of litigious divorce has never been stopped in the academic world. Considering the critical role of the standard of litigious divorce in the whole divorce system, it is significant to establish a scientific and rational standard of litigious divorce both in theory and judicial practice, therefore, the article focuses on the issues of the standard of litigious divorce in our country, intends to reveal deficiencies of the standard of litigious divorce at present in our country through the more comprehensive, in-depth analysis and empirical research, puts forward my own sound advises on the current standard of litigious divorce in our country, and strive to make some contributions to this issue based on the former results.The introduction presents the basic concept and characteristics of standard of divorce by litigation, and in connection with the author's work experience in the field of civil trail, the author bring forwards the topic of how to establish a standard of divorce by litigation that is applicable to China's current situation. The main body of this article divided into four chapters. Chapter 1 introduces three legislation principals regarding the standard of divorce through litigation. Chapter 1 mainly introduces the trend and reason of the replace of the fault doctrine with no-fault doctrine. Chapter 2 is the study by comparison approach regarding the standard of divorce through litigation, where comparing several countries'standards of divorce through litigation in the world which is representative, such as the standard of divorce through litigation of Britain, Germany and Taiwan region of China. Chapter 3 introduces the history and current judicial practice of China's standard of divorce through litigation, where firstly representing the history and character of the currently effective legislation regarding China's standard of divorce through litigation, and secondly specifying, in the way of empirical study, the problems in the judicial practice regarding current standard of divorce through litigation and analyzing the reasons thereof. Chapter 4 discusses how to perfect the socialism divorce system with Chinese characteristics based on the conditions of the country at this stage. In this Chapter, the author first describes the intense academic argument between"breaking up of emotion"and"breaking up of marriage relationship", and brings forward an original viewpoint on the dispute: no matter how the nonobjective concept of"breaking up"is described,"breaking up of marriage"or"breaking up of marriage relationship", the concept is ambiguous from either extension and intension perspective. The key issue of"no-fault doctrine"in divorce by litigation should be"whether or not the request of divorce appellate by the party/parties has been deliberatively considered (by the party/parties). As a result, the controversial over"breaking up of marriage"and"breaking up of relationship"merely touches the core of issue in question. Only by establishing rational premise of"breaking up"can the problems in judiciary practice be solved. Then, the author analyzes the most important value goal to establish the standard of divorce through litigation at this stage is to protect the freedom of divorce and effectively realize the appropriate interference in divorce by the country (including maintaining the stability of marriage and avoiding severe circumstances), and how to appropriate strict the freedom of divorce to effectively realize the value goal of the standards of divorce by litigation. The author then puts forward a plan to build more reasonable new no-fault doctrine standard of divorce through litigation , including addition of"cooling down"period of during divorce; reinforcement of mediation; regulation the of definition of"breaking up"and definition of its occurrence, and also exceptions by presumption; addition clauses that protect the disadvantaged party/parties. Superiority of the new standard conceived, under China's contemporary judicial environment, is argued and proved at the end of the article.