Study On The Cooling-off Period System Of Divorce Litigation

In 2016,the Supreme People’s Court introduced the reform of family adjudication nationwide,and some courts experimented with applying the cooling-off period for divorce proceedings.In 2018,the Supreme People’s Court made it clear that local courts could apply the cooling-off period for divorce litigation based on the experience of the pilot program.The cooling-off period of litigation divorce plays an important role in preventing impulsive divorce,saving crisis marriage,maintaining the stability of marriage and family,and promoting the harmonious and healthy development of society.However,there are some problems in the application of divorce cooling-off period system,and it is urgent to take corresponding measures to perfect the system.The thesis is divided into five parts except introduction and conclusion.The first part is the basic theory of divorce cooling-off period.In the newly issued Civil Code of China,there is only a cooling-off period for registered divorce,and the cooling-off period for litigation divorce has not been confirmed by law yet,which is only reflected in the trial opinions of the Supreme People’s Court.Although the litigation divorce cooling-off period is just starting in China,the development history and practical experience of the divorce system in China have laid a foundation for the formal establishment of the litigation divorce cooling-off period.The second part,the rationality of divorce litigation cooling-off period system.Divorce cooling-off period system is not an obstacle to the freedom of divorce,its nature is normative with order significance to the freedom of divorce,and helps to realize the value of interaction between freedom and order.The system can meet the actual demand of divorce litigation,alleviate the multiple contradictions of divorce disputes,and promote the harmonious and healthy development of the society.The cooling-off period system of litigation divorce has more advantages than the existing "prior mediation" and the six-month "divorce prohibition period",and the current system can not replace its role,but also can make up for the defects of the practice of "the first judgment does not leave" in judicial practice,and optimize the divorce proceedings.At the same time,the purpose of the establishment of the system is legitimate and the means are proportionate.The third part,the practice of the application of divorce cooling-off period and the existing problems.In the process of exploring the application of divorce litigation cooling-off period system,the courts have issued corresponding norms,which have achieved good results,but there are also some problems.Due to the lack of uniform and clear legal provisions,the courts in different places have different practices in applying the system.The applicable provisions are too principled and do not stipulate that the situation with serious personal safety threat is not applicable.In the process of application,it is often "cold",and there is no corresponding supporting measures to save the crisis marriage.The fourth part is about the similar system of divorce cooling-off period.Similar systems outside the region include the waiting period for divorce in the United States,the reflection period for divorce in the United Kingdom,the deliberation period for divorce in South Korea,and the settlement period for divorce in Russia.From the perspective of the system of these countries outside the region,we should pay attention to protecting the legitimate rights and interests of minors,treat different divorce situations differently and improve the supporting measures during the cooling-off period.The fifth part,suggestions on the improvement of divorce cooling-off period system.The first is to introduce the corresponding legal norms,the legal system design.Second,clarify applicable principles,including humanistic care,privacy protection and protection of minors’ interests.Third,the scope of application can be applied hierarchically.Obtaining the consent of the parties concerned shall generally apply;If the judge finds that the divorce is impulsive,he shall explain it to the parties and obtain their consent.Exclude domestic violence,abuse,drug abuse and other bad habits from application;The application shall be limited to one time;The cooling-off period for registered divorce and the cooling-off period for litigation divorce should be well connected and applied.Fourthly,the cooling-off period can be set according to the length of marriage and whether there are minor children.In addition,the personal relationship and property relationship during the application period are clearly defined.Fifth,establish a professional team of family adjudicators.The sixth is to perfect supporting auxiliary measures,including family mediation,family investigation,psychological consultation and follow-up visit,so as to give full play to the value of divorce litigation cooling-off period system.