A Discussion On Uncontested Divorce Of Persons With Limited Capacity

With regard to Chinese uncontested divorce,the “Marriage Registration Regulations” is an important basis of laws and regulations.However,with the development of legal theories and legal systems,and the examination of judicial practices,article 12 of this regulations has already highlighted more and more problems in the "universal exclusion" of all persons with limited capacity to divorce by agreement.In legislation,Article 12 of the “Marriage Registration Regulations” stipulates that the persons who have agreed to divorce are generally excluded from the provisions for restricting their capacity to perform acts,and they are inconsistent with the provisions of Article 22 of the “General Principles of the Civil Law” that recognize the limitation of the residual capacity of civil capacity persons.It will infringe upon the rights and freedoms of people with limited capacity.In fact,the natural persons' capacity to perform should include a variety of capabilities required for civil legal activities.Different civil activities require different behavioral requirements for civil subjects,such as the capacity to conduct daily shopping and the legal capacity to take transportation,and to the object of marriage.Self-determinationcapacity,self-determination capacity to dissolve marital relations,capacity to make medical decisions,capacity to make wills,capacity to enter into partnership contracts,etc.At present,many experts and scholars in the field of law,hold this view,such as Li Xia,Wang Zhuqing,and Chen Licheng.However,in the current legal system of our country,the system of classification and identification of types of behavioral capacity recognizes the individual's capacity to perform as a whole,and the actual need for the capacity of civil entities to participate in various types of civil activities is poorly differentiated.Persons with limited capacity to perform may not have significant property disposition capabilities or contracting partnerships to run businesses,but may have marital capacity.Moreover,the act of marriage conclusion and dissolution is an act of identity,related to the vital interests of the parties throughout their lives,and must not be deprived of their capacity to marry as a result of their possible lack of other capacity.But the Article 22 of the “General Principles of the Civil Law” respects the residual capacity of person with limited capacity,which is detrimental to the protection of self-determination of marital autonomy.Therefore,an conflict can be seen between Article 12 of the “Marriage Registration Regulations”and the Article 22 of the “General Principles of the Civil Law”.In judicial practice,some courts in China have gradually realized the drawbacks of the general exclusionary provisions of Article 12 of the “Marriage Registration Regulations” in the trial practice,and they judge individuals marital capacity according to its' capacity to identify their own behaviors in marriage termination or dissolution.The courts showed two kinds of attitudes towards the marital capacity of persons with limited capacity: 1)disavowal the possibility of the person with limited capacity has marital capacity;or2)judge marital capacity or make a presumption of marital capacity,according to his own situation.In fact,in many appraisals,it is concluded that people with limited capacity have the capacity to marry.There are also courts which fully respect their own intentions in marriage,according to their actual conditions,and the former uses laws and regulations as the sole basis for trials,and resolutely upholds the authority of laws and regulations;while the latter uses the laws and regulations as the basis for judgments,taking into account the actual conditions ofthe parties and safeguarding the vital interests of citizens.Obviously,the court holding the latter attitude has noticed that artical 12 of the “Marriage Registration Regulations” generally denies marital capacity is not appropriate.This rule is too crude and cannot be adapted to the actual situation which is not conducive to the protection of citizens' rights and interests.In order to solve the above problems,this article will explore the domestic and international capacity system as well as the scope of applicable subjects for divorce settlement at home and abroad through literature analysis,legal practice analysis,and comparative research.We will exclude people with limited capacity in Article 12 of the Marriage Registration Regulations.Explain the inappropriateness of uncontested divorce,discuss the protection of the rights and interests of persons with limited capacity,and try to put forward a glimpse into the detailed classification of our country's behavioral capacity and the determination of the specific capacity of marriage capacity,and apply to the uncontested divorce in China.See the scope of the main body and safeguard measures.We hope to help our country's future legislation,amendments,and judicial practice.In the study of the above issues,regarding the classification of behavioral capabilities,the author found that French,Japanese,and other civil law countries have already made greater efforts in the reform of the behavioral capacity system and achieved certain results.For example,the “Japanese Civil Code” bans “all or nothing”holistic behavioral competence from the categorization of behavioral capabilities,and takes note of the diversity of behavioral requirements for various types of civil activities,and divide limited capacityis into three categories,such as limited capacity to contract,lawsuits,wills,gifts and other legal acts to varying degrees of restriction.This point is also reflected in the Anglo-American law system.The Irish Law Reform Commission has repeatedly emphasized in the report that the determination of the capacity for behavior should be based on the actual needs of a certain type of civil activity.It should be determined,and the capacity is divided into contracting capacity,medical treatment and nursing determines capacity,capacity to make wills,and capacity to conclude and dissolve marriage relationships.This will allow the limitedcapacity person's remaining capacity to be recognized as it should be,so that his residual value would be realized and his personal dignity should be duly respected.With regard to restraining the marital capacity of people with limited capacity,the author finds that: Germany and Japan affirmed the marital capacity of persons with limited capacity in the legislation,and in the German Civil Code and the Japanese Civil Code,all persons with limited capacity are stipulated.In the conclusion of marriage,there is a complete discretionary decision-making power,without the consent of the caretaker and adult guardians.Moreover,the “Japanese Civil Code”clearly stipulates that persons with limited capacity have full autonomy in uncontested divorce,and do not need the consent of their guardians,protectors,and supporters,and provids new directions for the provisions of the subject's scope for the application of the divorce system in China.Not only that,in practice at home and abroad,there are forensic experts and medical experts in clinical studies who believe that although the majority of people with limited capacity have abnormal mental or mental conditions and do not have full capacity,they still have independence as certain capacity for civil conduct.Countries such as Ireland and Japan have demonstrated that the capacity to conclude or release an marriage relationship is less demanding on legal capacity.It should not be assumed that persons with intellectual or mental disabilities do not have the capacity to conclude or release intimacy.In principle,the parties need to have a general understanding of the nature of the marriage and a general understanding of the behavior and results of the conclusion or dissolution of the marriage,which means the parties should know that they are fond of the spouse and are willing to live with them together;When dissolving marital relations,one should be able to recognize that they are about to leave their common lives with their spouses and that they will lose their rights and obligations for mutual care and support.It is should be recognized that they have the capacity to marry and should enjoy the right to self-determination of the marriage.This shows that even people with limited capacity are most likely to have the capacity to dissolve their marital relations,which has a reference value for the improvement of our performance capacity system.In addition,Japan,the UnitedStates,and other countries have established precedents for the identification of behavioral capabilities.This also provides a reference for the improvement of our capacity to identify specific behaviors;in our country's judicial practice,the precedents of post-identification of specific civil capacity is also formed.These methods and standards lay the foundation for the improvement in the article 12 of the“Marriage Registration Regulations” and the remaining capacity of those who affirmatively limit the capacity to perform.In addition,the dependence of the identity on the subject must be respected as much as possible,and the parties themselves should exercise their right of self-determination.For those who have the capacity to marry,but other specific civil capacity is lacking,they should adopt decision-making support measures instead of depriving them of their autonomy.Therefore,people with limited capacity to marry should enjoy the right to self-determination in dissoluting the marriage relationship.At the same time,some countries,such as France,have made progress in the design of the divorce protection system.For example,uncontested divorce requires the attorneys of the divorced parties to carry out substantive examination of the content and attach an endorsement to the agreement.The notary needs to file and archive the divorce agreement so as to ensure the rights of the parties,and to avoid fraudulent and seditious signatures.In summary,Article 12 of the “Marriage Registration Regulations” which stipulates the scope of the subject of the divorce settlement should be detailed.It should abandon applying the“one-size-fit-all” rough rules,and allow some persons with limited capacity who have marital capacity to uncontested divorce.Of course,Chinees behavioral capacity system needs to be updated in advance.In particular,it is necessary to note that different civil activities have different requirements for the capacity of civil subjects,emphasize the protection of the residual self-determination rights of people with limited capacity,details refine the types of civil capacity such as marital capacity.