The Statutory Reason For Divorce Judging

“Advocating the freedom of divorce but hasty” is the guiding ideology of the institutionof marriage in our country. On the one hand, divorce freedom is an integral part of thefreedom of marriage, on the other hand, the excessive freedom might lead to reckless divorce.So it is necessary to put forward a scientific and correct point of marriage or divorce forpeople. Thus, the statutory reason for divorce judging is the core issue of the divorce law.Meanwhile, it is also the direct embodiment and the guiding ideology in a fundamentalsystem of divorce law.This paper has more than30000words, can be divided into four parts.The first part is an interpretation of the basic theory of the statutory reason for divorcejudging. The author interprets the meaning of the statutory reason for divorce judging at first.Through introduction of the difference among the divorce judging, litigious divorce anddivorce by agreement, make it clear that the writing object of this paper is limited to thedivorce judging. At the same time, by analyzing the function of the statutory reason fordivorce judging in order to highlighting its central position and importance in the theoreticaland society research. Secondly, the author explores the relationship between the divorcelegislation advocated and the statutory reason for divorce judging. And demonstrates thatdivorce legislation advocated as the core of the divorce law system, determines the specificcontent and form of the statutory reason for divorce judging. Conversely, the statutory reasonfor divorce judging is the implementation and balance of the divorce legislation advocated.The second part is the legislative situation of the statutory reason of divorce inextraterritorial countries and the comparative analysis. First of all, the author adopts ahistorical perspective to review the development of national divorce legislation advocated andthe current statutory reason for divorce judging in those countries briefly. Then, the authormakes a comparative study between divorce legislation advocated and the statutory reason fordivorce judging in content, validity and form. From this part the author finds that there aretwo typical trends in the20th century all over the world. The one is from “the fault reason” to“the breakdown reason” in the content, the other is from enumeration to generalization in theform. But single legislative advocated is not universal in the national legislation. Instead,make the breakdown theory as the principle and using both fault and no-fault reasons as theproof of break has been widely adopted, we call it composite breakdown theory. The third part is the legislation discussion of the statutory reason for divorce judging inthe mainland of China. First of all, the paper combs the history development of the legislationadvocated which from man dictatorial divorce doctrine in the ancient to fault divorce doctrinein the modern and the exploring of the freedom divorce in the Communist period until theestablishment of the breakdown theory after the foundation of the PRC. Then, highlight themain content and the development process of statutory reason for divorce judging under thesystem of breakdown theory. Finally, analyzes the rationality and defect of the currentstatutory reason for divorce judging from the aspect of legislative advocated, the content andthe form etc.The fourth part focuses on how to improve the current statutory reasons for divorcejudging in our country, which is the most important part of this article. The authorrecommends reconstructing our divorce system from two aspects, one is the legislativeproposals and the other is system design. The author insists adopting the compositebreakdown theory, because it conforms to the nature of marriage of Marxism and the presentsituation of Chinese communist marriage. However, since social attribute is the essentialattribute of marriage, the author advocates that “common life break” should be superior to“emotion break” at the abstraction level. In specific cases show level, the author suggestamending some related cases which have been ruled in divorce law and adding some typicalcases which have serious impact on marital relations, such as “differences occurred due tofertility problems”,“severe mental illness permanently”,“more than five years to prison” andso on.