On The System Of Divorce Registration In China

With the economic development and the improvement of living standards, people’s attitude to marriage has changed. The family responsibility has turned pale gradually for some people, and the divorce rate has been increasing year by year. Meanwhile the public tend to accept and tolerate those divorced one, people no longer think that divorce is a shameful thing. In our country, there are currently two ways of divorce, one is divorce by registration and the other is divorce by litigation, more and more people tend to choose the former way. So it has high theoretical and practical significance to do research on registration divorce system, and it also become one of the topics that Chinese scholars cannot ignore in the development of the divorce law. In order to maintain family stability and social harmony, and to patch the loopholes in registration divorce system on the entity and procedure, we make the registration divorce system the research subject, by research from several aspects such as the present legislation and implementation etc., the author tries to put forward some improving suggestions.Registration divorce system is an essential part of the legal system in our country, because it can share the judicial pressure of the judicial authorities, embody the principle of divorce freedom meantime with the moderate state intervention, and it can also prevent the hasty divorce and safeguard the interests of the weaker party. This paper advocates amending and improving the registration divorce system of our country, on the basis of the actual situation of our society.In addition to the introduction, there are a total of about 39000 words in this thesis, and it is divided into four parts.The first part of the thesis is an overview of the basic theory on the registration divorce system in China. This part firstly expounds the four main elements of the registration divorce theory, i.e. the subject element, the intention expressed is genuine, not violate the law or the public interest and through the statutory procedures. Secondly, it analyzes the legal status of China registration divorce system, getting the conclusion that the registration divorce system is an important part of the marriage registration system in china. Then the functions of registration divorce system are described with the following four parts: the first is to protect the freedom of divorce; the second is to prevent hasty divorce; the third is to protect the interests of the weaker party and minor children’s rights; the forth is to reduce the litigation exhaustion, and to save judicial resources. This part aims to introduce the basic theory of the registration divorce system, and to clarify the necessity of the existence of this system.The second part is the value orientation of registration divorce system. Firstly, from the angel of liberal value, the divorce law protects divorce freedom primarily, but this freedom is relative, and it should be restricted within the law. The reason follows: one is based on self-interest of the divorce parties; the second is to balance individual interests and the overall interests of the community. Secondly, from the angel of equal value, our registration divorce system should be established on the basis of equality of the spouse parties, and we should pay attention to embody the principle of substantive equality in dealing with the registration of divorce, hence protect the interests of the weaker party in the couple. Finally, from the angel of efficiency value, we deem that as an administrative act, registration divorce should also reflect the principles of convenience and efficiency regulated by administrative law.In the third part, the thesis studies and analyzes the legislation and practice of the registration divorce system. First of all, the author introduces the legislation situation in our country, includingMarriage Law of the People’s Republic of China amended in 2001 and Regulation on Marriage Registration promulgated in the year of 2003, and then makes specific comment on them. Next, based on the two-year materials of registration divorce cases from a Marriage Registration Office in a district of Chongqing during 2013 to 2014, the author conducted a sample survey, trying to make analysis on the basic situation of the registration divorce parties, and on how they deal with children and property according to divorce agreements. Furthermore, the author marked field trips in the marriage registration office to see how the staff worked and to carry out interviews with some divorce parties. At the end the author puts forward the deficiencies and the reasons in the implementation of the registration divorce system.The fourth part is the legislation conception of improving the registration divorce system of our country. To solve the problems listed in the third part, the author proposes that we should improve the registration divorce system on its substantive elements and procedural elements. For the substantial elements, the thesis suggests to increase restrictive conditions applicable to the registration divorce system, to further clarify the responsibilities and rights of the marriage registration office(the specific content and criteria for the review of the divorce agreement, requiring the registration authority to fulfill its obligation of informing, etc.), and to provide the necessary relief for the defective registration divorce, i.e. to set up a mechanism, regulating that some registration divorce is invalid and can be revoked under some circumstances, and to establish formatted text of divorce agreement. For the procedural elements, the thesis suggests to add the conciliation procedure as a pre-procedure, to set up divorce cooling-off period, and to make the household registration procedure as a necessary part. Finally, the author proposes measures to improve the divorce registration, such as improving the quality of the staff, specifying writing services etc.