Font Size: a A A

Research On Legislative Perfection Of Residency Right After Divorce

Posted on:2024-04-04Degree:MasterType:Thesis
Country:ChinaCandidate:Y S YangFull Text:PDF
GTID:2556307073970499Subject:legal
Abstract/Summary:PDF Full Text Request
In today’s society,the right of residence after divorce can be said to be the product of morality.In order to protect the rights and interests of vulnerable groups,it is the concrete manifestation of the obligation to help.Under the current situation that China’s social security and social relief are imperfect and the divorce rate is increasing year by year,it has the social role of relieving vulnerable groups and settling family disputes.Articles 366 to 371 of the Civil Code,which came into force in 2020,formally set up the system of residence rights,mainly by means of mutual consent+registration.Article 1090 of the original Marriage Law also changed the "appropriate help from their housing and other personal property" in Article 24 to "the other party with affordability should give appropriate help",expanding the scope of application of economic assistance.However,the complexity of the post-divorce residence right in theory and the fuzziness of the legal provisions make it impossible for the judge to accurately apply the post-divorce residence right to the vulnerable party of the marriage to guarantee it.The provisions of the right of residence after divorce in the Civil Code are still too vague,which is not conducive to the judge’s accurate application of the right of residence after divorce in the trial.Therefore,in order to effectively deal with the displacement of one party after divorce,it is necessary to analyze the theory and practice of the right of residence after divorce,find out and solve the problems in the provisions of the right of residence after divorce in the Civil Code,and make detailed provisions for the provisions of the right of residence after divorce.By analyzing the legislative and judicial status of the right to reside after divorce,and identifying the problems in judicial practice,it can be found that there are some issues in the relevant provisions of the Civil Code regarding the right to reside after divorce.Firstly,the definition of the establishment method is difficult to effectively protect vulnerable parties.The establishment of residency rights after divorce needs to be agreed upon by the parties,which legally limits the judge’s ability to protect the disadvantaged party in the marriage through direct judgments in specific cases.From the perspective of the method of obtaining rights,the regulations on the setting of residence rights after divorce are not perfect.There are deficiencies in both the specific number of legal provisions and specific provisions for obtaining the right to reside after divorce through judicial means.The Civil Code does not explicitly stipulate the method of obtaining residency rights after divorce through adjudication,therefore,it cannot be precisely regulated.Secondly,there are deficiencies in the application conditions of residency assistance in the divorce assistance clause.From a litigation perspective,the determination time for assistance in divorce residency rights is at the time of divorce,but in specific practice,the specific application situations where the vulnerable party needs assistance cannot all be at the time of divorce.In addition,the specific form,degree,and content of assistance are not detailed,and the subjective aspects of both parties in the marriage are not included in the scope of assistance that needs to be considered,which may lead to the rigidity of the application of residency rights clauses after divorce.Thirdly,the rights and obligations of residents after divorce are not clear,and the Civil Code does not provide provisions in this regard.The practical application of the obligations and rights that residents should fulfill may cause confusion.Fourthly,there are omissions in the provisions regarding the loss of residency rights after divorce.The Civil Code only stipulates the expiration of the term and the death of the person with the right to reside after divorce,without making clear provisions on what constitutes the expiration of the term,nor does it specify the reasons for the termination of the right to reside after divorce,except for the two cases.So far,there is still a lot of room for application of the provisions on the right of residence after divorce in the Civil Code,so it is necessary to improve the provisions on the right of residence after divorce.Based on the development process and judicial status of the right of residence after divorce in China,the following suggestions are put forward for the improvement of the provisions of the right of residence after divorce in the Civil Code.First,improve the provisions of the Civil Code on the establishment of residence right after divorce,promote the judicial establishment of residence right after divorce,and adopt a dual protection mode for the vulnerable party in marriage.Second,improve the applicable conditions of residence right in divorce assistance,extend the specific period of divorce assistance request,identify the standard of living difficulties,take the subjective aspects of the petitioner into consideration,and specify the specific content of appropriate assistance.Third,clarify the rights and obligations of residents after divorce.Clearly define the right of possession,use,improvement and repair,the right of exclusion of nuisance and the right of preemption of the right of residence,and clearly define the right of residence to undertake reasonable use,daily maintenance,return of the house and other obligations after divorce.Fourth,increase the loss of residence right after divorce.The situation of the expiration of the right of residence after divorce is subdivided into life-long determination,determination when the children reach adulthood,determination of another residence,and determination when the obligee remarries.The situation of the termination of the right of residence after divorce caused by the revocation of the right of residence,the expropriation and loss of the subject matter of the right is increased.From the perspective of safeguarding the rights and obligations of the vulnerable party in marriage and balancing the rights and obligations of both parties,the above measures have been taken to improve the content of the right of residence after divorce,which will help to balance the interests of the strong and vulnerable groups in marriage,so that the rights and obligations of both parties will be more comprehensively and effectively protected,in order to prevent the abuse of rights and promote family and social peace.
Keywords/Search Tags:Divorce, Residency Right, Civil Code
PDF Full Text Request
Related items