| The couple separation legal system is in many countries and regions of marriage andfamily is one of important content.But the marriage law of the People’s Republic of China(hereinafter referred to as "marriage law") has always been only admits that divorce, lack oflaws and regulations in separation legal system,about separation only the provisions in"separation and fixed number of year", and takes it as the breakdown of the standard thatcouples.With the development of society, people’s traditional marriage idea produced a seriesof change, the husband and wife in the phenomenon of separation increase, in the court’sacceptance of the divorce cases because of separation in the divorce case in the number stilloccupy a larger proportion.According to9September2008the people’s political consultativeconference, reported in2007, city Beijing to court840divorce cases of the investigation,which involves separated150pieces of cases, the lack of legislation, led to in fact in the stateof the husband and wife separation, whether right or obligations are in limbo.At the same time,the judicial practice, in recent years the provinces and cities have "try divorce" system ofjudicial exploration,"try divorce" from the parties apply for divorce or suing for divorce tothe formal divorce between a voluntary separation the stage. Puyang city henan provincecounty court seat since May2005began "try divorce" system to try. Since the system wasimplemented, there were10couples try "try divorce", to September, including nine couplehave reconciliation, a pair of still in "try divorce" stage.So,"try divorce" in practice has madegood social effect, got most of the recognition and approval. The judicial practice use also hascaused the ordinary people and legal scholars dispute and discussed.This research of the husband and wife separation legal system is intended to regulate andadjust the phenomenon of the facts separation, created a system of protecting the legal rightsof the husband and wife separation. Husband and wife separation legal system originated inthe temple law, in Germany, Italy, the United States and Hong Kong area in the marriage andfamily law all has the clear rules, is the important content of the law of marriage.Couples separation legal system in our country’s law in the blank, in view of the fact thatthe separation and "try divorce" into "legal blind area", law should be set up the separationlegal system, but overall reference to other countries and regions on the system is not realistic.This paper in other scholars to explore this system, on the basis of reference and throughforeign legislation style, with China’s special situation and actual condition, were in our marriage and family of husband and wife separation add the legislation law system and therelative contents of research, the couple separation legal system expound some basic views,and proposes suggest to construct the legal system of the husband and wife separation.This article is divided into four parts, about45000words:The first part, the husband and wife separation legal system in the paper. This part of thefirst elaborated the concept of the husband and wife separation legal system, constitutiverequirements, characteristics and the basis, husband and wife separation legal system is notthe award or the agreement of both parties in accordance with the husband and wife livingtogether from right and obligation, but not relieve the marriage law system, has thehumanities, auxiliary and the dependency characteristics. Separation demand in the both sidesof husband and wife shall have the right to terminate the purpose of obligations betweenhusband and wife living together, there must be a certain period of couples living together thefact that separation exist, the author thinks that the elements mentioned above is separationthe components of the habitat. Then follow the law system of husband and wife separationlegislative development context, this paper introduces the development process of separation,today, the husband and wife separation legal system in many countries and regions becomelaw of marriage as an irreplaceable important system.The second part, the foreign legal system of husband and wife separation comparativestudy. Because in the separation legal system produced in the unique historical conditions, andour country history does not have this one condition, so want to explore and analyze the rootof this system, it is necessary to from couples have the law system of countries separation ofhusband and wife understand the legal system in foreign development course, concrete isthrough Germany, Italy, the United States and China’s Hong Kong related legal contrast, drawthe conclusion: the German law, its unique separation during the marriage property valuecompensation proceedings, maintain the property of husband and wife in separation just. Italy,husband and wife in the design of the legal system not to "children benefit maximum"principle as the starting point, protect children in all the legal rights and interests. The UnitedStates, the agreement in separation play an important role, although the agreement is highlyindependence, but for the parents in child support and care on the specific stipulations. Ourcountry Hong Kong area, in a detailed to don’t rules, including injunction, injunction is a forcein the command separation, its main purpose is to achieve the parties personal protectionagainst domestic violence. More countries and regions of the place of superior system, it is worth reference.Third part, summarizes the husband and wife set up in the legal system of the necessityof separation. In this part, the divorce rate in recent years, first for a rough statistics, the datashow that high divorce rate in our country, and "with" and "hasty" type divorce widespread.The author thinks that, set up in the legal system of separation, solve the divorce rate is highin effective countermeasures. Based on this from two aspects of theory and practice, thispaper reviews the law system of husband and wife separation multiple value. From the Angleof legislation, can complete marriage laws in our country system standard, adjust the factsseparation; From the judicial perspective, can guarantee the smooth progress of the divorcetrial, regulate foreign marriage and in Hong Kong, Macao and Taiwan area of maritalproblems for law; From a social perspective, to reduce domestic violence, maintaining familyorder, and guarantee the minor children interests. Husband and wife in the establishment ofthe separation legal system, is not only the objective need of real life, also is the inevitablechoice of our country’s legislation.Fourth part, constructing China’s husband and wife separation law system and givingsome legislative suggestions. Through the analysis of the marriage law of the relevantprovisions about separation, and points out that the legislation of our country present situationand defects. And in the light of the shortcomings of the legislation, learn from other countriesand regions in the law system of husband and wife separation "essence of place", puts forwardthe basic idea: on the basis of no fault principle, children and family housing benefit themaximum principle of special provisions principle, establishment and divorce system of thehusband and wife separation parallel legal system. Separation take the form of agreement inand judicial separation don’t coexist in the model, the reason of using generalization don’t, thesummary is to "make the marriage and family life has not last common situation", the term ofthe regular separation set to1year, clear the terminated separation specific reason, and putsforward some solutions in foreign and Hong Kong, Macao, platform difference of conflict oflaws in the proposal. The focus of this chapter is to provisions of the relationship betweenhusband and wife and separation between parents and children to the third and the legal effect,innovation point is to put forward during pregnancy the study of special protection, the courtmay apply for promulgated according to "an emergency injunction".This article from the basic concept of the separation legal system, using the lateralcomparison method, the various countries and regions of the husband and wife separation compare in the legal system, and at the same time, using the longitudinal comparison, themethod of historical research to our country the husband and wife in the establishment of theseparation legal system in this paper. Through the analysis of the current "marriage law"relevant provision, puts forward the right to build a suitable for China’s national conditions ofhusband and wife in the law system of separation comments and Suggestions. The author putsforward the reason of separation summarized as "make marriage and family life has not lastcommon situation", it is based on the present situation of our country in the fact separationconsider, can make up for the divorce filing system causes severe process complex, suchshortcomings, make the parties quickly quickly suspended marriage live together. In addition,the couples separation legal system in import "injunction", especially for pregnant woman ofthe "emergency injunction", is very necessary, give victims right, make the victim can usenational public power against the violent, can reduce and prevention and control of domesticviolence, which can maintain stable family, but also to promote social harmony. |
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