Reflection On The Legal Reasons Of Divorce In Contemporary China

At the beginning of the founding of new China, in order to destroy the feudalmarriage system and set up the new democratic marriage system, the first marriagelaw of the People’s Republic of China (hereinafter referred to as the" marriage law "in1950) released on April13,1950. Since the marriage law has been published in1950,the argument about the legal reasons of divorce in contemporary Chinabetween"reason"and"emotion"lasted in the legislative, judicial and academic circlesfor more than30years. In1979the supreme people’s court expressed that the brokenrelationship between husband and wife whether could restore well” as the standard ofdivorce proceedings in opinions about carrying out the policy of civil legal. Afterthirty years of judicial practice, in the practice of the legislative considerations andscholars on the basis of experience,“mutual affection has broken” was specifically inmarriage law of the People’s Republic of China (hereinafter referred to as the"marriage law "in1980)in1980. In2001the marriage law of the People’s Republic ofChina (amendment)(hereinafter referred to as the "marriage law" in2001) listed indetail in the court that "husband and wife mutual affection has several kinds ofsituations", and gave further litigation divorce standard refinement, which increasedits maneuverability. But,"mutual affection of husband and wife"(hereinafter referredto as the "husband and wife relationship theory") as the divorce standard establishedfor more than thirty years, there is still argument in the theoretical circle, especially in2001, before the amendment, the debate between scholars reached the state of heatedand the majority supported the theory of marriage relationship, but China’s legislaturestill wrote” husband and wife mutual affection” in marriage law amendment in2001.Reflection on the legal reasons of divorce in contemporary China, namely "husband andwife relationship theory", from the point of court practice, the concept of "feeling" isan extremely abstract fuzzy, whether such a specific vocabulary reduce the legalauthority as the law enforcement standard? Marriage law in2001, stated that thelegislative mode of he legal reasons of divorce to exemplify the abstract feelings,whether specific theory in the field of legislation in our country is a big step forward? The author believes that the theory of the relationship of litigation divorce standard isin line with the socialist economic development level at present, it has its socialfoundation and moral basis; Cases of the mode of legislation, it is a significantprogress in legislation, it has to do with marriage mediation system which is thecombination of using case, not only increases the maneuverability of the law, but alsoimproves the efficiency of the judicial case and makes the discretion of the judge getsthe guarantee of law.This article firstly analyzes the legal reasons of divorce in contemporary Chinatheoretically, and combines contemporary China to establish the legislative mode oflitigation divorce standard to reflect whether it is scientific and reasonable andconforms to our country’s realistic national conditions. In order to help the guidejudicial practice of the litigation divorce standard in contemporary China, the authoraccording to the statistical results of the relevant questionnaire analysis, put forwardmore convincing, more representative and typicality suggestions, and combining withthe judicial practice, the cause of "husband and wife relationship", put forward theimproved lawsuit system of divorce mediation, separation system.The method of study that this article adopts mainly includes:The method of philosophical analysis."Marriage both includes human instinctdesire of naturalness and human rationality of social civilization.” The analysismethods of legal philosophy are needed to achieve reunification of the two kinds ofattributes and balance the interests of the two needs to use. Analysis methods of legalphilosophy that see the essence through the phenomenon, found in the complicatedsocial phenomenon essence of matter. This article analyses from the view marriage ofMarxist and its essence, and confirms the word "love" in the law, and certain"husband and wife relationship theory" is in line with the socialist mainstream valueand the vie marriage of Marxism.Comparative study method. The existence of different periods of the legalsystem has its different social basis, it is a product under the background of differenttimes. The legal reasons of divorce based on the longitudinal compare period, thusaffirms the lawsuit of divorce in the theoretical circle and judicial circle incontemporary China. Empirical research methods. Combing the relevant case by using the method ofempirical analysis, this paper further summarizes the problems that exist in thejudicial practice, to combine practical experience and legislation, so as to furtherperfect the relevant legal system.