On The Litigious Divorce Of Persons Without Capacity Of Civil Conduct

Compare to the litigious divorce of persons with full capacity for civil conduct, thelitigious divorce of persons without capacity of civil conduct is unique. Although the article8of Interpretation (III) of the Supreme People’s Court of Several Issues on the Application ofthe Marriage Law of the People’s Republic of China(hereinafter referred to as theInterpretation (III) of Marriage Law) has provided whether the guardian of a person withoutcapacity of civil conduct can suit for divorce and the relationship between the litigiousdivorce and the litigation of changing the guardianship, the explore cannot stop here. It’s stillbeneficial to have an overall look on the issue as well as the following entity judgment.The text is divided into three parts, which from the definition of the study scope toprocedural matters and substantive matters. The author tries to apply the divorce system tolitigious divorce in which the person without capacity of civil conduct participated. However,the author mainly focuses on the difference from the litigious divorce of full civil capacity. Atthe same time, the author believes the litigious divorce of persons without capacity of civilconduct include not only the procedural aspects but also involves the substantial aspects.Therefore, the author discusses the two separately.The first part is an overview of the litigious divorce of persons without capacity of civilconduct, which include the scope of the study, the scope of persons without capacity of civilconduct and how to identify the persons without capacity of civil conduct. The authoradvocates the scope of the persons without capacity of civil conduct should be expanded,including the persons who are in vegetative state, patients with cerebral palsy and so on. Anysituation can apply to this system as long as they meet the characteristics of the personswithout capacity of civil conduct. Thus the problem has been summarized and be moreadaptable.The second part is about the procedural aspects of the litigious divorce. This part mainlyrelates to three issues, namely whether the guardian of a person without capacity of civilconduct can suit a divorce, the relationship between the litigious divorce and the litigation ofchanging the guardianship and the way to deal with the suit. The author agrees with theInterpretation (III) of Marriage Law explains the guardian can suit a divorce on the legalrepresentative of persons without capacity of civil conduct under certain conditions. However,the guardian should change the guardianship first is unsuitable; The court can deal with a suit by mediation and judgment, but the court should give a substantive examination on mediationcontent.The third part is about the substantial aspects of the litigious divorce, including fouraspects, namely the principle of divorce approved by the court, the principle of propertydivision and debt management, the determination of the custody of the children and supportpayments and economic support. One party of the spouse become incompetent can be areason for approving divorce, but in the light of the reality of China and to protect theinterests of incompetent persons, doctrine of relative divorce should be adopted; The divisionof property and debt management must protect the interests of persons without capacity ofcivil conduct; The custody of the children should be judged to the persons with full capacityfor civil conduct in principle. According to the specific circumstances, the court determinesthe amount of support payments that the persons without capacity of civil conduct shouldundertake. The persons without capacity of civil conduct can also obtain the custody of minorchildren exceptionally. Finally, the persons without capacity of civil conduct can be protectedby improving the system of economic support.