Build The Separation System Of Our Country

Separation is an important legal system of foreign marriage and family law, refers to the couple through litigation or agreement to temporarily dissolve cohabitation obligation and keep the relationship between husband and wife behavior. The separation system originated in ancient Rome period "Twelve Tables", in medieval Europe,Christianity as the prohibition of divorce means has gradually formed a complete legal system. With the seeds of capitalism, capitalist law established the doctrine of rupture of divorce, the marriage as grounds for divorce and marriage, and must have the legal fact,the fact is that the couple separated, so far, the modern separation system was officially formed, and in the capitalist countries are still in use.In 1980, the marriage law of our country clearly defined the divorce as the standard,more respect for individual freedom of marriage, equality of the pursuit, breaking the traditional "home based" shackles. In 1989, the Supreme People’s Court on the judicial interpretation of the provisions of the couple because of emotional discord and Juda time identified as the breakdown of marriage reason, since then, the separation and divorce established contact. Especially the amendment of marriage law in 2001, the husband and wife separation due to discord over two years "as a legal reason of divorce,this shows that our country in the legal recognition of the separation is sufficient to cause the legal fact marriage relationship change. Unfortunately, China’s legislation on separation is too general and does not provide separation meaning, starting time,separated during the calculation, leading to separation in the judicial practice difficult to prove facts. In the current society, husband and wife separation due to discord is already a fact there are a lot of couples,to prove the purpose of separation,for spouses and children indifferent, is abandoned, serious damage to the interests of family members and social stability, need to be separated into independent legal system perfect,separation phenomenon has spread to adjust the.The scholars in our country there are many disputes on the transplantation of the separation system, supporters believe that the separation system can play a positive role in promoting the development of law, easy divorce proceedings and optimization of social management. To promote the development of law refers to the principle of freedom of marriage can enrich the content, the balance between husband and wife in the right of cohabitation, marriage relationship between formation and elimination, the establishment of changing marriage rights, in favor of marital cohabitation obligation at the same time, give each other to justify the obligation of cohabitation defense.Convenient for divorce refers to the divorce proceedings the parties to provide convenient separation of legal evidence of the fact that simplified the breakdown of marriage,to resolve the conflicts between the divorce parties and judges,save the judicial resources. The optimization of the social management means through the establishment of the separation system in the period of separation of husband and wife,to provide a legal basis to adjust the personal and property rights,and other aspects of their children, not out of control, because the couple separated in the separation system for divorce barrier mechanism, can reduce the divorce rate, both to maintain social stability. Opponents argue that the separation system is the embodiment of opposing divorce values, undermine the principle of freedom of marriage, a waste of judicial and administrative resources, and the actual dilution couples. The author argued that the freedom of marriage is the legal limit of freedom, the separation system is in line with the legal system of humanitarian value pursuit, in order to meet the needs of objective reality,should be transplanted separation system in our country,but not to accept, but preferred to keep crude refined improvement.Therefore, the author of the civil law of France, Germany, Italy, England and the United States, Australia and other countries of the separation system was studied, that China should transplant the separation system in the separation and divorce, separation process,the separation causes,separation effectiveness,enrich the existing legal provisions. Finally,with the current situation of China’s law and put forward legislative proposals to establish the separation system in China._The innovation of this paper is to collect the mainstream view of support and opposition of the complete separation of transplantation, clearly showing two views and disputes with China’s legal system should adhere to principles and standards of evaluation in the process of building a country under the rule of law, through analysis of two kinds of viewpoints, try to provide a reference for the two sides to stop the fight. At the same time, combined with judicial practice the author, from the protection of legitimate rights and interests of the parties and convenient marriage in judicial practice two aspects, proposed the strict definition of separation, separation causes specification and reasonable provisions during the separation procedures, adhere to the mediation principle and psychological intervention mechanism in the separation process, in order to limit the negative impact of the separation system.