The Construction Of The Cooling-off Period System Of Divorce Litigation In China

Since the Supreme People’s Court promoted the reform of family adjudication,many local courts have actively promoted the innovation of system and procedure in the field of family litigation,and the cooling-off period of divorce litigation is one of the systems explored by courts.Family disputes are special,involving many emotional factors such as affection and love,as well as the dual attributes of private interests and public interests.It is impossible to make a clear judgment of "who is right and who is wrong" in many disputes.The traditional adversarial procedure is to help the court to find out the facts of the case by using both parties to present and cross-examine evidence.However,it ignores the restoration of couples’ emotions,and is too "rigid" for domestic cases,unable to achieve the unity of social and legal effects.Compared with "distinguishing right from wrong",the cooling-off period system of divorce litigation is more focused on "saving marriage",which is based on resolving disputes,giving play to the repair and healing functions of family,and embodies the judicial concept of "family orientation".Although there is still no clear legislation in China to recognize this system,from the perspective of reason,jurisprudence and the social background analysis of the rising high divorce rate and high remarriage rate,the system of litigation divorce cooling-off period is feasible and necessary and conducive to the realization of substantive justice of family cases,it is indeed necessary to establish.Combining with the social background of our country,this paper summarizes and analyzes the practical experience of the cooling-off period of divorce proceedings in our country and reflects on and draws lessons from the relevant foreign systems,and puts forward the legislative conception of the cooling-off period system of divorce proceedings in our country.This paper is divided into six parts.The first part is introduction.This part focuses on the research background,research significance,research status,research methods and research innovations of the litigation divorce cooling-off period.The second part is the proposal of divorce cooling-off period.Based on the analysis of the current situation and causes of marriage in China,it is concluded that the divorce rate is rising year by year,the reasons for divorce are diverse,and the irrational divorce events are frequent,and the institutionalization of the cooling-off period of divorce litigation is put forward.The third part is the legal basis of divorce cooling-off period.This part analyzes and demonstrates the basis of legal value,law economics and law sociology of divorce cooling-off period.The fourth part is the necessity and feasibility analysis of the establishment of divorce litigation cooling-off period system.On the one hand,it analyzes the necessity of the cooling-off period system in reducing impulsive divorce and optimizing the allocation of judicial resources.On the other hand,it analyzes and demonstrates the feasibility of the cooling-off period system of divorce litigation in China.The fifth part is the study of relevant systems at home and abroad.On the one hand,it lists relevant foreign systems,reflects on the defects of foreign systems and draws lessons from foreign mature experience.On the other hand,it analyzes and summarizes the practical difficulties and beneficial exploration of the cooling-off period system of divorce litigation in China.The sixth part is the construction of divorce litigation cooling-off period system.The legislative idea of litigation divorce cooling-off period system is formed on the basis of summing up and reflecting the practical experience of Our country and drawing lessons from the mature experience of other countries.It is mainly divided into three aspects: the applicable scope of litigation divorce cooling-off period,the implementation mechanism of litigation divorce cooling-off period and the period setting of litigation divorce cooling-off period.