Review And Optimization Of My Country's Judicial Divorce Standards

Divorce disputes in court occupies a more and more proportion in civil cases,based on the particularity and the complexity of a divorce case,handling of divorce disputes and more emphasis on the unity of the legal effect and social effect,and the divorce standard as the basis of whether court judge granted a divorce,in a core position in the whole system of divorce.On May 28,2020,promulgated by the civil code,peoples attention,the problem of divorce is the focus of widespread attention from all walks of life,"civil code" in the legislative level still adhere to the "relationship" as the divorce standard of our country,suggests that "affection" this standard will remain steady for a long time in our country play a role in court dealing divorce cases.Since the enactment of China's Marriage Law in 1980,there has been a theoretical dispute over whether the legal divorce standard should be the theory of emotional breakdown or marital breakdown.The two have their own arguments in terms of the scientific nature of the expression,the status quo of marital relationship and judicial application,among which the majority of scholars adopt the theory of marital breakdown.Fall divorce standard is in line with the actual needs of the divorce disputes,the court in a divorce case in the process of judicial review "affection",how what factors impact on the court ruled that "affection",in the legislation rules of "relationship" shows the extent to which plays a role,with only a "relationship" is enough to support the judge to impartial judgment? With the above considerations,the author takes the empirical research method as the main train of thought,with the help of the judicial documents network,with "case type: civil case,court province: Jiangsu Province,court level: grass-roots court,key words: Husband and wife relationship " search for the selected conditions,respectively,2016,2017,2018,2019,in 2020 the verdict as sample,study of court referee thinking,mainly to the court ruled that relationship has not been broken and have indeed broken summary and analysis on the reasons,found that the referee after finishing the problems existing in the divorce standard where applicable: The first is to judge the divorce standard,our country insists in the legislation in our country the divorce standard is "husband and wife mutual affection has",and from the point of provision,also reflected the breakdown of "marriage",and in the judicial practice,through the analysis of the sample cases,court judge substantially more embodies the "marital relationship",take marriage as a starting point and the foothold,Emphasize the mutual obligation between husband and wife.Second,the judgment standard is too vague.The feelings between husband and wife are subjective and secretive,which gives the judge greater discretion.Therefore,the court is too cautious in the judgment of divorce cases,and the parties' burden of proof is too heavy and difficult to predict.Third,the court abuse the possibility of reconciliation,even do not pay attention to the actual situation of the couple's feelings,the "possibility of reconciliation" on the grounds of the decision not to divorce,often reflects the personal will of the judge.These problems can be solved by perfecting the legal provisions of separation,strengthening the application of the divorce rule of second prosecution,and adding the harsh provisions of divorce,so as to improve the application of the judgment divorce standard in China's judicial practice.