According to the news on December 26, on December 24, 2019, the draft of each division of the civil code was submitted to the 15th meeting of the Standing Committee of the 13th National People's Congress for group deliberation. Some members suggested that a screening mechanism should be established for the application of the "cooling off period of divorce" involved in the draft compilation of marriage and family, which aroused heated debate. Some industry experts said that in reality, the marriage registration authority lacks the ability to investigate and distinguish evidence, and it is not appropriate to set exclusionary provisions in the 'cooling off period of divorce'.
The latest draft submitted for deliberation follows the provisions on the "cooling off period for divorce" in the first instance draft. Article 1077 of the draft stipulates that within 30 days from the date when the marriage registration authority receives the application for divorce registration, if either party is unwilling to divorce, it may withdraw the application for divorce registration from the marriage registration authority. Within 30 days after the expiration of the period specified in the preceding paragraph, both parties shall personally apply to the marriage registration authority for a divorce certificate; If no application is filed, the application for divorce registration shall be deemed to have been withdrawn.
According to the Southern Metropolis Daily, Li Yuefeng, member of the Standing Committee of the National People's Congress, suggested that the provisions on the cooling off period for divorce should be improved, and a paragraph should be added as the third paragraph after article 1077 of the draft: if there are the following circumstances, the cooling off period may not be set: bigamy or cohabitation with others; Committing domestic violence or maltreating or abandoning family members; Gambling, drug abuse and other bad habits remain unchanged after repeated education; Separated for two years due to emotional discord.
After media reports, the 'cooling off period of divorce' system triggered a heated debate again. Some netizens believe that this provision can reduce the occurrence of impulsive divorce and help maintain family stability. Some believe that this provision may interfere with the freedom of marriage and is not conducive to the protection of the rights of the parties. Others are discussing whether to set up a screening mechanism and exclusionary provisions.
Jiang Yue, a professor of the Law School of Xiamen University and vice president of the marriage and Family Law Research Association of the China law society, told the interface news that there are various reasons for the divorce of the parties. The parties are relatively young. When they encounter contradictions and conflicts in marriage and life, they may divorce because of lack of experience or even impulsive divorce.
'if & lsquo; Divorce cooling off period & rsquo;, It can urge the parties not to make the important decision of divorce at the peak of conflict. After they register their divorce request, they still have time to look back and think again. It should be helpful for people who divorce impulsively. " She said.
According to the data released by the Supreme People's court, the first instance cases of divorce disputes in China from January 1, 2016 to December 31, 2017 show that two to seven years after marriage is the high incidence period of marriage breakdown. In the first instance cases of divorce disputes in China, 73.4% of the plaintiffs were female, and the most couples were between 0 and 3 years old.
In recent ten years, the divorce rate in China has also continued to rise. According to the data released by the Ministry of civil affairs, the divorce rate in China has increased for 15 consecutive years since 2003, from 0.55 & permil in 1987; Up to 3.2 & permil; in 2017;.
Liu Jialiang, associate professor of the Law School of Shandong University, told the interface news that at present, the time required for divorce by agreement in China is very short, and the conditions for divorce are too loose. As long as both parties bring all relevant materials to the marriage registration authority to go through the divorce formalities, they may be able to get the divorce certificate on the spot. In recent years, there are more and more social problems caused by divorce in China. Among juvenile crimes, the defendants who are not well taken care of because of their parents' divorce account for a large proportion.
The "cooling off period of divorce" has been written into the draft of marriage and family in the civil code, which is also the first time to enter the level of national legislation, but in some places, the exploration of "cooling off period of divorce" has already begun.
In 2016, the Supreme People's court decided to carry out the pilot work of innovation and reform of family trial methods and working mechanism in courts across the country. Since then, courts in many places have successively started the pilot of "divorce cooling off period". In March 2017, the people's Court of Anyue County, Ziyang City, Sichuan Province issued the province's first notice of "cooling off period for divorce"; Four months later, Yuling court of Danfeng County People's Court of Shaanxi Province issued the first notice of "cooling off period of divorce" in the province.
In July 2018, the Guangdong High Court issued the guidelines for the procedure of hearing divorce cases by Guangdong courts, which put forward the complete provisions of the "divorce cooling off period" for the first time, divided the "divorce cooling off period" into emotional restraint cooling off period and emotional repair cooling off period, and stipulated different starting conditions, setting time limit and application rules.
In the same month, the "opinions on further deepening the reform of family trial methods and working mechanisms (for Trial Implementation)" issued by the supreme law made corresponding provisions on the "cooling off period of divorce": when the people's court tries divorce cases, it can set a cooling off period of no more than 3 months with the consent of both parties.
Liu Jialiang pointed out that according to China's laws, there are two methods of divorce, one is divorce by agreement, the other is litigation divorce. Previously, some places in China launched the pilot of "divorce cooling off period" in litigation divorce, and the draft civil code sets "divorce cooling off period" in negotiated divorce, which has attracted more social attention.
"We also suggest that a cooling off period be established in the divorce by agreement. Litigation divorce is carried out under the guidance of the court. If the parties have too impulsive behavior, the judge can guide the parties to think calmly. Without such external intervention, the staff of the marriage registration authority will not find out the truth like the judicial magistrate, Judge the reasons for the parties' voluntary divorce. " Jiang Yue said.
Jiang Yue has different views on the proposal of members of the Standing Committee of the National People's Congress to set up a screening mechanism and exclusionary provisions during the "cooling off period of divorce". She believes that among the parties to an agreed divorce, it is necessary to investigate and identify evidence on whether the parties have committed acts such as domestic violence, which is difficult for the marriage registration authority to complete. " The staff of the marriage registration authority is not a judicial magistrate and does not have such a strong ability to distinguish evidence. " She said.
Liu Jialiang also believes that the 'cooling off period of divorce' system is not suitable for setting exclusionary provisions. In cases such as bigamy, abuse, abandonment and domestic violence, both parties often need to provide evidence, and the marriage registration authority has no advantage in identifying these cases. In the process of investigation, if one of the parties disagrees, the marriage registration authority will face difficulties in judgment.