On The Application And Perfection Of The System Of Divorce Calm Period In China

The divorce calm period system stipulated in Article 1077 of the Civil Code of the People’s Republic of China can supplement the shortcomings in legislation on family disputes,promote the reform of the family justice model,lay the foundation for the lawful administration of marriage registration management departments,and also help protect the legitimate rights of underage children.At present,it is not clear whether the civil code is applicable to the calm period of divorce in litigation divorce.It can indeed be applied in agreement divorce,but the relevant legal cooperation mechanism has not yet been established.Since the introduction of the divorce cooling off period system,it has caused widespread controversy in society.Many people have expressed opposition to the system,believing that it is an interference in their freedom to divorce,but there are also voices supporting it.They believe that the introduction of the system does give both spouses a period of 30 days to think calmly,which is conducive to both spouses’ cautious decision on their marital relationship and to some extent,to avoid impulsive divorce,It has a certain effect on reducing the divorce demography that is rising year by year in China.Therefore,the viewpoint of this article is as follows: the divorce cooling off period system can be applied in both agreement divorce and litigation divorce.Currently,it is not clear whether the divorce cooling off period system is applicable in litigation divorce in China,and detailed regulations should be provided.I personally believe that the divorce cooling off period system should be applicable to divorce litigation,and the period should also be 30 days.When the court serves a notice of hearing on both parties,it should indicate on the notice that either party has the right to apply for the divorce cooling off period system and submit an application before the end of the court debate,and the judge in question should fulfill the corresponding obligation of reminding and informing before the end of the court debate to ensure that the parties are aware of their rights.And I personally suggest that the judicial litigation habit of "second divorce" in litigation divorce and the habit of first mediation in divorce cases should be abolished to improve the judicial efficiency of litigation divorce cases.However,the mediation process was not directly cancelled,but was applied during the thirty day calm period of divorce.However,the court can only intervene in mediation after the parties have filed a lawsuit for divorce,and after the parties have applied for the application of the divorce cooling off period system,within 30 working days of the application of the divorce cooling off period,the court can intervene in mediation by a mediation team composed of judges with marriage experience and responsible for family trials,when the parties voluntarily apply for court intervention.The ruling on the application of the divorce cooling off period approved by the parties should indicate that either party has the right to apply for the intervention of the judge’s mediation team,and the judge should have the corresponding obligation to remind,that is,at the same time as the ruling is made,inform the parties that they have the right to apply to the court for the intervention of the judge’s mediation team at any time within 30 working days of the application of the divorce cooling off period.After receiving the application,The court should organize a mediation team of judges as soon as possible to begin mediation.I personally believe that canceling the "second divorce" is not very necessary and coincides with the original intention of the divorce cooling off period system.As long as the divorce cooling off period system can play a practical role in practice,the traditional judicial practice of "second divorce" can be completely abolished,and it will also more effectively save the litigation time and cost of both parties and improve efficiency,After all,the law does not explicitly stipulate that "second divorce" must be used in divorce cases.For negotiated divorce,in previous practice.