Study On The System Of Marriage Agent For The People Without Civil Capacity

During the existence of marriage, the party without the civil capacity who lacks the capacity of declaration of will can not initiate legal proceedings of divorce by himself or herself. According to the traditional civil law theory, identity relationship must be dealt with by ourselves, but not by others. As a result, legitimate rights and interests of those without the civil capacity my be inevitably infringed under some special circumstances. It is because there exists certain obstacles in theory that we have no statutes to apply about the issues of the divorce agent of these people. In 2011, the article 8 of Interpretation(III) of the Supreme People’s Court of Several Issues on the Application of the Marriage Law of the People’s Republic of China(hereinafter referred to as the Interpretation(III) of Marriage Law) starts to help solve such a problem in the legislation and stipulates that those people’s legal agent can take a lawsuit of divorce on behalf of his own will under certain conditions.To a certain degree this regulation makes up the blank of the law, improves weak position of the people without the civil capacity in marriage and keeps their legitimate rights and interests from their spouses’ damage. But the questions are whether it is lawful and reasonable to endow the those people with the right of agent to take legal actions for divorce, whether the stipulation violates the spirit of the civil law of“Discretion Action of relationship can not be act for”, and whether it is reasonable to provide that changing the guardianship must be prior to the proceeding of divorce. As for such issues, there exist some disputes in the academic world. Thus the article will discuss two main points: firstly, from the angle of the legislative policy, the article will grope for legislative intention of the Interpretation(III) of Marriage Law to reach a conclusion that it is lawful and reasonable to affirm suite rights of those people’s legal representatives. Secondly, from the perspective of legal technology, combined with the Article 7 of the Inheritance Law of the People’s Republic of China(hereinafter referred to as the Inheritance Law) on forfeiting the right of inheritance, this paper will analyze under what circumstances a legal action of divorce can be taken by the legal representatives on the basis of the current legislation. Besides, the article will continue to analyze how to take a legal action of divorce, and how to properly arrange guardianship for the people without the civil capacity when the court opposes divorce. This article is divided into four parts: first of all, to figure out the nature of agent and clearly define the applicable scope of the system of civil agent from the macroscopic view, and then discuss the problems of agent in the divorce proceedings from the microcosmic view, mainly focusing on the agent of identity relationship and non-identity relationship, among which the latter is more important. After sorting out the problem whether the identity relationship can be acted for by others under certain conditions, this paper will end up with some further discussion on the exercise of the authority of agent.