Research On The System Of Divorce Cooling-off Period In China

For more than 40 years of reform and opening up,Chinese society has witnessed the In-depth development of market economy,as well as the changes in the family's internal structure and marriage relationship model.In this context,the Marriage and Family Law,as an important means of adjusting the marriage and family relationship,which is closely related to the people's lives,has been highly concerned by the sociological and legal circles.In recent years,new changes have taken place in China's marital status,such as a decrease in the marriage rate,an increase in the divorce rate,a reduction in the duration of marriage,and an increase in the age of first marriage.In response to these new changes in marital status,Article 1077 of the "Civil Code of the People's Republic of China"(hereinafter referred to as " Civil Code ")adopted on May28,2020 provides for a cooling-off period for the registration of divorce.On the whole,the content of this provision is basically appropriate,but there are still problems that need to be further improved,such as a single setting during the cooling-off period,unclear specific application scope of the cooling-off period,and lack of necessary supporting measures to assist the cooling-off period system.Therefore,how to further improve the divorce cooling-off period system stipulated in the "Civil Code(Draft)" in 2019,suppress the rising divorce rate,effectively prevent indiscriminate divorce,impulsive divorce and fake divorce,and effectively protect the legality of marriage parties and minor children Rightsand interests,maintaining the stability of marriage and family,and finding the best balance between guaranteeing freedom of divorce and promoting social harmony and justice have become important issues that need to be resolved urgently in the current reform of the marriage and family legal system in China.Under the circumstances of social system transformation,deepening market economy,and the change of people's concept of marriage and family,through the analysis of literature,comparative law and other methods,the paper analyzes the shortcomings of the divorce cooling-off system in China.First of all,as the codification of civil law is proceeding in full swing,Civil Code stipulates the basic principles of marriage and family editing,but the system for the cooling-off period of divorce lacks more detailed and scientific guidelines;Secondly,the scope of application of the divorce cooling-off period is vague,and it is not stipulated to exclude its application;again,The choice of the length of the divorce cooling-off period has not been reasonably distinguished according to the actual situation in practice;Finally,Lack of corresponding supporting measures to help the divorce cooling-off period system work.Combining the current social conditions and national conditions of China and the relevant legislative experience in the United Kingdom,South Korea and other countries,to improve the divorce cooling-off period system,the following realization path is proposed: First,the guidelines for the divorce cooling-off period system are clarified;The application should be shortened or exempted;third,the cooling-off period should be set differently according to whether thereare children who need to be brought up,the length of the marriage relationship and the status of the marriage diagnosis;fourth,the parties in the divorce cooling-off period should be mediated and provide professional consultation,Establish a divorce review system and a return visit team to help divorce parties to think carefully and properly arrange during the calm period,avoid irrational choices,and ensure that the legal consequences of divorce are maximized in justice and minimized in damage.