| In a divorce case, the people with mental disabilities do not belong to full capacity, can't express their real meaning clear, hard to exercise Divorce right actively, and the current law is not perfect enough, no specific laws and regulations as the basis for operation, lead to mental disabilities program in a divorce case, claim to economic help exercise the difficult problems such as intention, the upbringing of children unable to clear. In terms of mental disorder Divorce right exercise program, therefore, need a clear mental disorder guardian can be exercised on behalf of the Divorce right, make clear a regulation change mental disorder of the guardian shall be exercised on his behalf is its Divorce right premise, make clear a regulation lawsuit case is people with mental disabilities exercise Divorce right only way; In terms of economic help exercise of the right of claim, "difficulties" need from absolutism to the standard of relativism, the time limit for the "divorce" needs easy to a certain period of time, amount to be adjusted according to the illness weight of people with mental disabilities, etc.; In terms of child custody intention to define the meaning of the need to be considered in conformity with the state of people with mental disabilities, said and put forward "subrogation tending" point of view, so as to achieve the final purpose of safeguarding the rights and interests of mental disorder Divorce right exercise.This article is divided into four parts.The first part mainly lists the people with mental disabilities Divorce right exercise program, economic help, child custody meaning related to the current law, said to find several representative case analysis, so as to see that today's mental disorder Divorce right exercise the judicial status quo.The second part through the analysis of the mental disorder Divorce right exercise the judicial status quo, find the Divorce right exercise of the causes of problems and obstacles. In people with mental disabilities divorce ways, for example, only the incomplete capacity can't divorce in the form of registration, but can not provided to accommodate with the case; In terms of how people with mental disabilities exercise Divorce right, explain three marriage law has no capacity in the abuse, abandonment, or serious damage to their rights, under the condition of other people with guardianship qualification first change to guardianship again to mention divorce proceedings, and not other things, such as its spouse to give up treatment how to solve, and the limited capacity of people to exercise Divorce right if there are no relevant provisions; Economic help when divorce, only the "life" as a condition, not to, change and termination of the term, the amount of expenses; In terms of children, are generally according to the principle of "children's best interests" directly to the people with mental disabilities, without considering the attachment relationship between children and parents. These problems is made up of people with mental disabilities do not have full capacity and the particularity of intention ability completely, and the relevant legal provisions are not clear.The third part from the theory, combined with case sums up the characteristics of the type of people with mental disabilities and Divorce right connotation, and analyzes the theoretical foundation of the people with mental disabilities to exercise Divorce right.The fourth part is mainly aimed at the above several aspects of the solution of its recommendations. In terms of mental disorder Divorce right exercise program, through the different view of the doctrine of the comparison, it is concluded that the specific certain mental disorder Divorce right exercise; In terms of economic help, draw lessons from foreign advanced legislation, puts forward the corresponding perfecting suggestion. In terms of children, puts forward the method to the subrogation tending, improve all the real cases children of people with mental disabilities side of the situation. |
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