| This paper focuses on conspirators to divorce,usually called “fake divorce”.The meaning of fake divorce is the couple who want to gain profit conspiratorally and reach an agreement,which is against their true purpose.They go to the marriage registration authority to petition for a divorce and get divorce certificate.After they gain a benefit or other advantages arising from that status they will get married with each other again.This paper is based on a real case,which occurred in Bengbu,Anhui province and further I analyse the court decision and lead to the meaning of fake divorce,the characters of fake divorce,the factors of fake divorce and the perniciousness of fake divorce.There are two viewpoints about divorce in academic fields,one is factual divorce and the other is the divorce in form.The factual divorce believes that fake divorce is similar with conspire hypocritical act or malicious conspire actin“General Principles of the Civil Law of the People's Republic of China” and so on.So it has the same validity,namely the fake divorce is invalid.It requires not only procedural factors but also substantive factors,which mean it requires a real intention about divorce between the couple.The divorce in form believes that it is valid when divorce conforms with the procedural factors.This paper will be divided into 4 parts to discuss.Details as follows:The first chapter will be divided into 3 sections.First is a real case,which occurred in Bengbu,Anhui province in China and I introduce the court decision to lead to this phenomenon in current society.Through the court decision I analyze some arguments and lead to this phenomenon having many negative influences on “Marriage Law”and the attitude of the law fields to this phenomenon.In our law fields,law experts and scholars don't differentiate between real divorce or fake divorce.They think when a divorce satisfied the procedural factors,it is a valid and real divorce.The second is the definition of fake divorce.Fake divorve has two type,fraudulent divorce and conspire divorce.This paper will focus on the latter.The characters are(a)the couple don't have intention to break a marriage;(b)they want to get some profits by divorce;(c)this divorce is terminable,when the couple get profit they will get married with each other again.(d)it satisfies procedural conditions;Fake divorce always chooses marriage registration procedural for divorce,because it is much faster,cheaper,brief examination,privacy protection,conflict avoidance and so on.The third are the number of cases from 2007 to 2016 that I analyze from chinese judgement net and lead the reasons and damages of fake divorce combined with policies loopholes,lack of ideas and divorce registration system is not perfect.The second chapter having 3 sections to discuss about the theories of fake divorce in detail.The first is from factual divorce,whether it belongs to the act of conspire hypocritical,Malicious collusion or the act that conceal an illegal purpose under the guise of a legitimate transaction.The second is from divorce in form.Now Chinese judicial fields accepts this theory.The scholars and experts believe when the couple have formal consensus about divorce they are no longer have marriage relationship.What is called “fake divorce” actually satisfies the formal procedure,so there is no fake.It has the effect and the couple will not have spousal relationship.Some scholars come up with some reasons to approve that the divorce in form is a valid divorce.The divorce in form,for example,protects the majesty of administrative organization of justice and protects new relationships and policy loopholes should through policy rather shake the base of marriage to remedy.The third introduce the validity of divorce aggreement.According to the law man can only under fraud and force to request the court to revoke or modify the provisions of the divorce agreement.So when man feels regretful after divorce,law can not pay the bill for him or her.The third chapter is an analysis about the registration divorce system.It divided into 3 parts.The first part introduces every version of “Marriage Law” since 1950 about divorce by registration.Then I praise this system because it protects divorce freedom,weakens administrative content and highlights the attitude of persons' responsibility and the humanistic care.Finally I also introduce some problems which caused by these changes.Such as lack of substantial conditions,lax investigation,absence of cooling-off period and harmful to children and so on.The fourth chapter are some regulations about fake divorce from France,Japan,Korea,America,England which China can learn from.It divided into 2 parts.Firstly I suggest to add a marriage duration,a cooling-off period and when couple have children under 8,it is impossible to divorce through registration.Then I suggest to add some necessary processes,for example a divorce counseling or mediation,a warning before divorce.The staff of marriage registration office should inform the parties about the legal consequences of divorce in oral or written form,such as when fake divorce maybe becomes true.The last is a conclusion.To get a divorce means changing many relevant relationships,whatever we treat fake divorce,we should take social stability firstly for consideration.But now our country ignores it,which just gives opportunities to people who want get profits with fake divorce,and this is really harmful to our social stability.Now the keypoint is not to persue a theory just like “Divorce in form” or “Factual divorce”,but(1)we should not change legal system to amend unsound public policies.(2)the divorce registration system actually have some weaknesses that we should complete,but we should have a far-reaching designs and don't affected by some social phenomenons.(3)our legal system should accept the fake divorce instead of to avoid it.These are three parallel and intersective questions,we should one by one to solve them instead of mix them.Fake divorce reveals problems behind the procedure of registration,which are between the freedom guarantee and the intervention.Now registration system protects marriage freedom so much and lack of intervention such as regulation restriction,recovery procedure,essential examine and supervision and so on.How to protect marriage freedom and strengthen administrative and judicial intervention in the same time and reach a balance point is our critical point now.“Marriage Law” should anticipate in it and do something such as enacting cooling-off period,making mediation procedure,enhancing essential examine power and so on to urge spouses treat marriage strictly and protect the holiness of marriage instead treat marriage as a method to get profit. |
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