Vegetative Divorce

The PVS( Persisitent Vegetative State) is a type of special life community. There are no any regulations about their capacity of civil conduct in our current law system. After getting married, one party becomes PVS, their marital relationship goes bad. The PVS or the spouse, or the both are probably to put forward a claim of divorce. How to start the procedure , what is the criterion of divorce and how to resolve the maintenance of the PVS after divorce, all the problems demand our further exploration in legislation and administration of justice. Now in this article, the problems are discussed by comparing the foreign legislation and the domestic legislation, and also by analysing the schorlars'views and the need of the realities. The article text is devided into five parts:PartⅠ: The analysis of the value of PVS-divorce problem. By analysing the essence of marriage, we find the PVS's marital relationship has something out of harmony, and the marriage disobey the essence of marriage. So when one party put forward a divorce claim, the claim should be permitted. We have to resolve some theoretical problems and reality problems.PartⅡ: How to start the divorce procedure. By analying the PVS's capacity of civil conduct, the PVS is affirmed as the person with no capacity of civil conduct. So they can not get divorced though mutual assent, only can by litigation. People can carry on an announce according to the procedure of announcing the mentally ill, and establish the guardian who will be the PVS's Legal Representative to carry on a litigation activity. When spouse sues, the LR acts on behalf of the PVS. As to whether the LR could bring up divorce litigation, there are two kinds of clearly contrary standpoints. The negtive point is : Because the divorce is identity behavior which can not be acted, so the act brought up by the LR should be denied. In the article, by analysing the"civil case action"and the"civil litigation action", the negative view is denied. And the act which the LR carried on is a litigation act which could help the PVS to realise its sue right. And this affirmative view does not disobey our legislation will.PartⅢ: The criterion of divorce. The traditional criterion"emotion break"is too subjective, and it is hard to operate. While the new criterion"marital relationship break" is more reasonable.PartⅣ: The maintenance of the PVS after divorce. Many countries and places have set up complete maintenance system after divorce. But our Marriage Law only rules one party should help the other party who is poor when they get divorced. It's not enough to protect the weak group and need us to complete it.PartⅤ: The effect of the marriage after the PVS wakes up. The verdict of divorce represents judicial authority, it's the result of the national will. So when the PVS wakes up and cancels the announce, it will not influnce the effect of the verdict of divorce.