Original title: divorce rate has been rising for 15 years in a row. Should divorce have a cooling off period?
4hw.com.cn reported that on December 24, 2019, the draft sub parts of the civil code were submitted to the 15th session of the Standing Committee of the 13th National People's Congress for group deliberation. Some members suggested that a screening mechanism should be set up for the application of the 'cooling off period' in the draft marriage and family compilation, which caused heated discussion. Some experts in the industry said that the marriage registration authority in reality lacks the ability to investigate and distinguish evidence, so it is not appropriate to set up exclusive provisions for the "calm period of divorce".
The latest draft submitted for deliberation follows the provisions of the first draft on the 'calm period for divorce'. Article 1077 of the draft provides that within 30 days from the date of receiving the divorce registration application by the marriage registration authority, any party who is not willing to divorce may withdraw the divorce registration application from the marriage registration authority. Within 30 days after the expiration of the period specified in the preceding paragraph, both parties shall apply in person to the marriage registration authority for the issue of a divorce certificate; if no application is made, the application for divorce registration shall be deemed to have been withdrawn.
Li Yuefeng, a member of the Standing Committee of the National People's Congress (NPC), suggested that the rules on the calm down period for divorce should be improved by adding a third paragraph after article 1077 of the draft: a cooling off period may not be set if there are the following situations: bigamy or cohabitation with others; domestic violence or maltreatment or abandonment of family members; bad habits such as gambling and drug abuse that can not be changed after repeated education; and; He lived apart for two years because of emotional discord.
After media reports, the system of "divorce cooling off period" has aroused heated discussion again. Some netizens believe that this provision can reduce the occurrence of impulsive divorce and help to maintain family stability. Some people think that the provision may interfere with the freedom of marriage and is not conducive to protecting the rights of the parties concerned. Others are discussing whether to set up a screening mechanism and set up exclusive provisions.
Jiang Yue, a professor of Law School of Xiamen University and vice president of the marriage and Family Law Research Association of China law society, told the interface news that there are various reasons for the divorce of the parties. The parties are relatively young. In case of conflicts and conflicts in marriage life, they may be divorced because of lack of experience or even impulsive divorce.
'if there is a & lsquo; divorce cooling off period & quo;, it can help the parties not to make the important decision of divorce at the peak of conflict. After they register the divorce request, they still have time to think about it. It should be helpful for impulsive divorce people. '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 rupture. In the first instance cases of divorce disputes in China, 73.4% of the plaintiffs are women, and the most couples are between 0 and 3 years old.
In recent ten years, the divorce rate in China has been rising. According to the data released by the Ministry of civil affairs, China's divorce rate has been rising for 15 consecutive years since 2003, from 0.55 & perml; in 1987 to 3.2 & permil; in 2017;.
Liu Jialiang, an associate professor at Law School of Shandong University, told interface news that 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 relevant materials to the marriage registration authority for divorce procedures, they may be able to get a divorce certificate on the spot. In recent years, there are more and more social problems caused by divorce in China. Among the juvenile delinquencies, the defendants who are not well cared for because of their parents' divorce account for a large proportion.
It is also the first time to enter the level of national legislation when the "calm period of divorce" was written into the draft of marriage and family of civil code.
In 2016, the Supreme People's court decided to carry out the pilot work of innovation and reform of family trial mode and working mechanism in national courts. Since then, courts in many places have successively started the trial of 'divorce calm period'. In March 2017, the people's Court of Anyue County, Ziyang City, Sichuan Province issued the province's first 'divorce cooling off period' notice; four months later, Yuling court of Danfeng County People's Court of Shaanxi Province issued the first 'divorce cooling off period' notice.
In July 2018, the Guangdong High Court issued the procedural guidelines for the trial of divorce cases by Guangdong courts, which for the first time put forward a complete regulation of the 'calm period of divorce'. It divided the 'calm period of divorce' into the calm period of emotional restraint and the calm period of emotional repair, and provided different starting conditions, setting periods and application rules.
When the two parties agree on the trial, the Supreme Court can make a further regulation on the trial mode of divorce after three months.
Liu Jialiang pointed out that according to China's law, there are two ways of divorce, one is agreement divorce, the other is litigation divorce. Previously, some places in China have launched the trial of "divorce cooling off period" in litigation divorce, and this draft of civil code is to set up "divorce cooling off period" in negotiated divorce, which has attracted more social attention.
"We also suggest that a cooling off period should be set up in the negotiated divorce. Litigation divorce is conducted under the guidance of the court. If the parties have too impulsive behavior, the judge can guide the parties to calm down. However, in the absence of such external intervention, the staff of the marriage registration authority will not find out the truth and judge the reasons for the voluntary divorce of the parties like judicial judges What is it? "Said Jiang Yue.
Jiang Yue has different views on the proposal of the Standing Committee of the National People's Congress to set up a screening mechanism and set up exclusionary provisions in the 'calm period of divorce'. She believes that among the parties to divorce by agreement, whether the Parties commit domestic violence or not needs investigation and identification of evidence, which is difficult for the marriage registration authority to complete. 'the staff of the marriage registration office are not judicial judges and do not have such strong ability to distinguish evidence. 'she said.
Liu Jialiang also believes that the "calm period of divorce" system is not suitable for setting exclusive provisions, such as bigamy, maltreatment, abandonment, domestic violence and other situations, which often require both parties to provide evidence, and the marriage registration authority has no advantage in determining these situations. In the process of investigation, if one of the parties disagrees, the marriage registration authority will face difficulties in judgment.