A Study On The Legal Condition Of Judging Divorce

The legal condition of judging divorce is the basis and core of a country's litigation of judging divorce. It not only concerns the court judgment in every divorce case, but also concerns a country's basic attitude and evaluation on divorce. The western countries achieved their transform of divorce judging from"the fault standard"to"the break standard"in sixties to seventies of the 20 century after the transform of the Divorce Law. In our country, since the foundation of the People's Republic of China, there have successively formed three main kinds of viewpoints on the legal condition of judging divorce, which are"proper reason","emotion breaking"and"matrimony breaking". The debates between these three kinds of viewpoints never end. Whereas the legal condition of judging divorce is of great importance to the divorce system and judicial practice, the author sets it as reserch target. This thesis not only studies the relevant regulations in western countries, but also reviews the history of the legislation in our country. Then the thesis puts forwards some suggestions about the improvements and perfecting measures on the legal condition of judging divorce in our Divorce Law in effect. The author tries hard to make some contributions to this subject according to the now-existing achievements.The foreword of this text summarized the reason that why the author chooses to write this thesis. The text of the thesis is divided into four chapters. Chapter one is about the historical evolution of the legislative principle of judging divorce. Since the legal condition of judging divorce is established according to the legislative principle of judging divorce, the author first summerises the history of the principle, which developes from patent right of divorce or prohibition of divorce to the fault standard of divorce ristriction. And until now, the principle has changed to the break standard mainly. This process reflects that people's understanding on marriage and divorce deepens. At the same time, they aware the importance of one's spontaneity. In the second part, the author not only introduces the historical evolution of the legislative principle of judging divorce, but also makes an evaluation. In our history, we used to follow the fault standard in divorce judgment. However, all the marriage laws established after the foundation of the People's Republic of China follow the break standard. But during the Cultural Revolution, we hold the proper reason standard, which is in essence a fault standard. Combined with the present situation, we should keep on holding the break standard as the legislative principle of judging divorce. Chapter three carries on a comparative law study on the legal condition of judging divorce. It mainly introduces the legal institution of judging divorce in France, Germany, Great Britain and U.S.A. Chapter four mainly discusses the legal condition of judging divorce in our country. The first part of this chapter is an analysis on the legal condition of judging divorce in current marriage law of our country. Then, on how to improve the legal condition, the author puts forward her own opinions. First, the legal condition of judging divorce is better to be"matrimony breaking", because it is in accordance with the Marxism and the object of regulation by marriage law. What's more, it can reflect the whole marital relation, and is more in accordance with our legislation and judicial practice. Second, it's better to add several exemplifications so that the judges can decide whether the marital relation is completely broken or not more easily. The last, it's better to perfect relevant institutions on Separation System to make it to be of good maneuverability.