The Conflict And Balance Between The Guardianship Duty Of The Spouse Of The Incapable Of Civil Conduct And The Freedom Of Divorce

As the first legal guardian and agent of a person without capacity for civil conduct,the spouse of a person without capacity for civil conduct should not only have the duty of support between husband and wife,but also fulfill the duty of guardianship and agency.In divorce proceedings,there is a conflict between the duty of guardianship of the spouse to the person without capacity for civil conduct and the right of divorce freedom.It mainly shows that there is a conflict in the status of the spouse of the person without civil capacity in the divorce proceedings,and the value conflict between the freedom of divorce of the spouse of the person without civil capacity and the protection of human rights and social justice of the person without civil capacity.In order to balance the freedom of divorce and the duty of guardianship of the spouse without civil capacity,the author proposes to solve the conflict of the status of the spouse without civil capacity in the divorce proceedings based on the comparison of the relevant legislation and academic research results at home and abroad,which balance the freedom of divorce and the duty of guardianship First of all,we should clarify the relationship between guardianship and agency.It should be made clear that the person without capacity for civil conduct can be represented by others in the divorce proceedings,and changing the guardian is not the prerequisite for obtaining the agency right.The author believes that the freedom of divorce should not be restricted or deprived at will,but should be guaranteed according to law.Divorce shall be granted for divorce cases of persons without civil capacity who have really reached the legal divorce standard after trial and are void after mediation.At the same time,in order to urge the spouse of the incapacitated person to fulfill the duty of guardianship,the author suggests to establish a guardianship supervision and reporting system to timely discover and stop the spouse's tort to the incapacitated person.In addition,the author suggests that China can learn from foreign legislative experience,establish a support system after divorce,so that the spouse can still give material help to the person without capacity for civil conduct within a certain periodafter divorce,as the price for him to shirk his duty of guardianship through divorce litigation.In order to protect citizens' freedom of divorce and the interests of vulnerable groups,the state and society should also strengthen the intensity of social assistance,increase the intensity of medical subsidies for people without capacity for civil conduct,and ensure that people without capacity for civil conduct can still get medical treatment after divorce,so as to reduce the divorce burden of the spouses of people without capacity for civil conduct,so that the state and the spouses of people without capacity for civil conduct can jointly deal with people without capacity for civil conduct responsible for the life of the competent person after divorce.The author believes that the above measures will help to balance the divorce freedom and guardianship responsibility of the spouse of the incapacitated person,and protect the legitimate rights and interests of the vulnerable incapacitated person,and help to achieve legal justice and social equity.