Comment On Article 8 Of Interpretation Of The Marriage Law(?)

Answers for the question of whether a person who has no capacity for civil conduct can filed divorce proceedings are different.And there are three views of negation,affirmation and compromise.The denier thinks:first,the dissolution of the marriage relationship belongs to the scope of legal action,and its effectiveness is restricted by the system of behavioral competence,and the civil juristic act of the person without civil capacity is invalid.Secondly,divorce is an act of identity,and a high degree of personal autonomy must be voluntary.On the basis of the above reasons,the person without civil capacity can not make a valid divorce,and the agent can not express the meaning of divorce.If a person without civil capacity is to be divorced from the marriage,he or she can only rely on the spouse to initiate the divorce proceedings and request the dissolution of the relationship.The affirmative,from the perspective of equality pf litigation rights and the principle of freedom of marriage,believes that the right to divorce the right to divorce is not legitimate.In the middle of the compromise,the view is mainly that people with no capacity for civil conduct have to dissolve their marriage in certain circumstances,but the legal agent should file foe divorce proceedings.There are various theories in theory,and in practice,they are different.Investigate its reason,mainly is system of our country existing behavior ability the all-round ability of the behavior of negative without person of civil action competence,together with the theory of legal act is to deny its legal effectiveness,under the dualfuncion,essentially produced“denied”the effects of behavior ability.Article 8 of the marriage law judicial interpretation(3)said the point of view states:“do spouse of a person who has no capacity for civil conduct abuse,abandon,or do any damage to his or her personal rights or property rights,other people can be in accordance with the special procedure with guardianship qualification requirements change to guardianship.The court shall accept the divorce proceedings brought by a party who has no capacity for civil conduct by his or her new guardian after the change.”The significance of this is that there is no civil capacity for the right to divorce,but there are still two major problems.First,it is not free from the shackles of existing capacity of conduct,and still has a negative attitude towards the capacity and litigation ability of person without civil capacity in divorce proceedings.Secondly,the existence of the pre-procedure of the change of guardianship has added an obstacle to the realization of the rights and interests of the person without civil capacity.In order to solve the problems existing in article 8,it is necessary to clarify the relationship between divorce litigation and change of custody.Both of them can be used as the means to guarantee the legal rights and interests of people without civil capacity,but they are not necessarily bound.Even if lawmakers think do person who has no capacity for civil conduct initiate a divorce proceeding should with the help of any agent,but there are many ways to obtain an agent,such as Germany's system of compulsory lawyer agency,guardianship supervisor agent in Japan and our country Taiwan area program supervisor system,and so on.Instead,the change of guardianship may lead to a lengthy process that affects the efficiency of the protection of the rights and interests of people without civil capacity.Moreover,if the court does not grant a divorce,then put the new guardians in embarrassment,after all,the relationship is not lifted,new guardian for management of common property of husband and wife will be affected.Secondly,it is necessary to adjust and perfect the existing system of behavior ability,which needs to combine the relevant concepts of human rights protection and the concrete measures of the transformation of modern adult guardianship system.On the one hand,under the guidance of the principle of"respecting the right to self-determination",we will thoroughly analyze the meaning and ability of the system behind the system,and fully affirm the residual meaning of the party.On the reference comparison method,on the other hand,countries in the field of adult guardianship system innovation,establish a support system of the self-determination,help them to participate in the "normalization" of social life.To explore the ability of people without civil capacity to have marital relations,to supplement and support their remaining abilities,rather than to deny and replace them.In litigation ability,draw lessons from outside method in a suit of identity relationship generally acknowledged that the parties conduct of action,in view of the particularity of divorce proceedings,to do not have person of civil action competence divorce proceedings affirm.As to what kind of support measures,according to the reform trend of contemporary adult guardianship system,legal guardianship has been gradually relegated to complement and auxiliary status,other more respect for myself monitoring measures shall be applicable to priority.Therefore,the marriage law judicial interpretation(3)of article 8 have been unable to meet the needs of the reality,cannot adapt to the development of era.We should introduce more convenient appropriate diversity of support way.