Study On Agreement Divorce Systems In China

As to the jurisprudential base of agreement divorce system, in the world the theories on marital essence contain "Theory of Contract", 'Theory of Marital ethic", "Theory of System", "Theory of State" and "Theory of Status's relation", etc. In my opinion, marital essence should be defined as a contract and the marriage lawmaking in our country should reflect the freedom of agreement divorce on the basis of human priority. As a result, the worth and function of Marriage Law can be realized.Since the establishment of P. R. China, the Mainland has experienced three divorce fastigiums and the litigious divorce was always in the majority. After 1980's the proportion of agreement divorce is enlarging. Presently some parties choose agreement divorce as the foremost way to get divorce owing to it's more civilized manner. This paper compared the divorce systems in agreement divorce and litigious divorce, introduced detailedly the essential conditions, responsible organization and executive procedures of agreement divorce, and analyzed the problems in its execution. I found the problems existed in the conflicting criterions to judge agreement divorce and litigious divorce. The divorce procedures made it possible to get vicious divorce that led the law's functions to become poor. Subsequently, to solve the above-mentioned problems some suggestions were put forward by comparing the agreement divorce systems among Chinese four scopes of law including Hongkong, Macao, Taiwan and Mainland. These visions comprised setting up a witness system and a consideration period before the agreement divorces are granted, empowering registry offices to refuse or postpone registry, building the compensate system brought by divorces to relieve innocent persons.The emphasis had been put in the comparisons of the agreement divorce systems among Mainland and other three scopes of law in this paper. The administrative registration procedure and lawsuit conciliation are adopted as the ways of agreement divorce in Mainland. Hongkong's law rooted in British's, so there is only litogious divorce. In order to adapt well to the trend in divorce lawmaking of most countries and diminish the difference between its divorce system and other three scopes' of law, I advised the agreement divorce system should be founded in Hongkong. Macao's law-came of Portuguese's and it kept up the traditional characteristic of Continental Law. In Macao there is litigant agreement divorce, not only administrative registrationprocedure. However, the chief source of Taiwan's divorce system was Dutch Civil Law and it also held Chinese traditional laws and conventions. The agreement divorce system of Taiwan merely adopts administrative registration procedure that disallows to be intervened by court. In addition, Taiwan's agreement divorce system is the outcome of the neoteric contract freedom thinking and tradition conventions and it is regarded as pure private legal action.By study of agreement divorce systems in Chinese four scopes of law, some regions can use the merits of other scopes of law for reference and improve the skills to make agreement divorce system. Thus the marriage law of our country will be more perfect.