The Study On Separation System

Separation system originates from the period of ancient Rome, as a substitution of non-dissolution of marriage, it played a positive role. At present, separation as a legal system has already been adopted by the majority of countries in the world and plays an important role in maintaining the lawful rights and interests of marriage parties, guaranteeing family and maintaining the stability of the society. However, in the present law of marriage of our country, specific provisions on separation system are not made, which leads to the lack of legal norm of the separation phenomenon that exists subjectively. The author thinks that an addition of separation system to the marriage family legislation of our country would have the positive significance of maintaining stability of family and protect legal rights of parties. Therefore, basing on the consulting of abundant documentation and integrating with some relative cases encountered in the author's job, analysis is done to the origin, notion, characters of separation and the current situation of our country, and then the author demonstrates the current legislation of separation system and puts forward legislative proposals for the addition of separation system in the marriage family legislation of our country.The paper falls into three parts excluding the preface, main body and concluding remarks. The main body is made up of three chapters. In the first chapter, functions, values and feasibility of legislation of separation system are illustrated. Through reviewing the historical origin of separation system, and analyzing constitutive elements of separation system, and listing the factions and values of separation system, feasibility and necessity of setting separation system are introduced. From separation system originate from remedy of ecclesiastical law to the defects of the system of ban on divorce, To the development history of separation in our country; from the analysis of the subject element and other four constitutive elements, to the summary of functions and values of separation system; And then the feasibility of setting up the separation system are analyzed from the two aspects of theoretical basis and Practice conditions, and the necessity of setting up separation system is pointed out from aspect of the need of development of the society. In the second chapter, China's current legislation of separation system, problems existing, reasons for the problems are analyzed. By looking into the current situation of legislative defects of China'separation system, reason for the existence of legislative defects in china's separation system are illustrated, and problems existing in juridical practice are indicated. legislative defects of Separation system are drawn forth from current legislation of China's separation system, further more, the origin of existence of legislative defects and the historical development of marital status in China and other particular reasons are analyzed, and the existence of practical problems in separation system such as divorce parties'excessive exercise of the rights for separation in civil justice practice are listed. In the third chapter, legislation proposal for setting up separation system in our country are discussed. Confirm the statutory conditions, procedure, duration and termination by clarifying the notion for separation, and analyze clearly the potency of separation, to build the separation legal system with Chinese characteristics.