| With the development of modernization and changes in social structure,divorce disputes have emerged and significant changes have taken place in the way disputes are resolved.This article examines the process of divorce disputes in the People’s Court of Shanghai District A and the People’s Court of Yulin District B in Guangxi.By comparing the generation and resolution mechanisms of divorce disputes in traditional and modern societies,it explores the impact of social structural changes on the resolution of divorce disputes in the context of the current explosion of divorce litigation.In order to improve the systematicness and logic of the discussion,this paper adopts qualitative methods such as long-term observation,field research,access to archives and interviews.The logical structure of the article is roughly divided into five parts.The introduction part is a review of domestic and foreign literatures on divorce disputes and the basis for judges’ divorce cases.It explains the theory of social structure change and the academic perspective of legal sociology adopted in this paper,and discusses two important concepts of divorce litigation and dispute resolution mechanism.Define,analyze its characteristics finely,sort out its historical development,and form a knowledge reserve for the in-depth description and theoretical analysis of field data in the latter four parts.The first chapter analyses the generation and resolution of divorce disputes in traditional societies,and finds that in traditional societies,marriage,which was confirmed by the Six Rites,was regarded as a mandate of heaven,and divorce was considered a taboo.Divorce disputes are often linked to traditional morality,such as whether or not to have offspring and to be filial to parents.As traditional societies were united by the ethics of blood relations,civil mediation,with its emphasis on restoring social ties,became the main method of dispute resolution,and litigious divorce remained on the periphery of divorce options.The situation has changed in the last decade,with divorce litigation doubling in size.Chapter 2 explores the link between changes in social structures and the emergence of divorce litigation by analysing the generation and resolution of contemporary divorce litigation.It is found that the causes of modern divorce disputes are usually categorised in three types of situations: emotional,family conflict and legalistic,with a focus on self-interest rather than altruistic factors.Judges also judge divorce cases not with the aim of restoring social relations,but rather with the aim of maintaining social stability,and the legal criterion of "breakdown of feelings" is backed by the principle of maintaining stability.Chapter 3 is a theoretical overview of the analysis of the field data in the first two chapters.By analysing the transformation of the divorce dispute resolution mechanism in traditional and modern societies,the study finds that the divorce dispute resolution mechanism has changed in line with the changes in social structure,from a pattern of "emphasis on mediation-weak litigation" in traditional societies to a pattern of "weak mediation-strong litigation" in modern societies.The study found that the dispute resolution mechanism of divorce has changed with the social structure,from a "strong mediation-weak litigation" pattern in traditional society to a "weak mediation-strong litigation" pattern in modern society.Dispute resolution in traditional societies is rooted in the ethics of blood relations,which focuses on repairing the emotional side of both parties to a conflict and seeks to promote harmony in interpersonal conflicts.Dispute resolution in modern society,on the other hand,is dominated by the authority of the state.Along with the social transformation,the traditional linking ties begin to break,and people who face the state directly under the modern social structure begin to seek help from the judiciary,while the state authority then radiates into all aspects of social life due to the loss of control of the family over individual rights claims and the absence of a buffer channel for disputes.However,the dispute resolution mechanisms of "strong mediation-weak litigation" or "weak mediation-strong litigation" are unable to combine the advantages of easing the pressure of divorce litigation in the courts and maximising the restoration of normal social relations,and there is an urgent need to build an optimal divorce dispute resolution mechanism.There is an urgent need for an optimal mechanism for resolving divorce disputes.Chapter 4,through the analysis of field data and theoretical reasoning above,proposes the construction of an optimal mechanism for resolving divorce disputes under the changing social structure-"strong mediation-strong litigation",which emphasises the effective implementation of the separation of simple and complicated cases and the docking of litigation and mediation.In modern societies where the authority of the state is the bond of solidarity,individuals communicate directly with other social units,which leads to the loss of control of the family over individual claims and consequently the lack of a buffer channel for disputes in modern society.At the same time,the large number of disputes involving the private sphere coming into the view of the state has resulted in the over-involvement of state law in private life,which not only wastes strained judicial resources,but also fails to ensure the effectiveness of dispute resolution.This article therefore argues that attention should be paid to socially linked education for harmonious families,and that the role of mediation in family disputes,such as divorce disputes,should be reasserted in particular,leaving enough room for family self-management.Professional mediation can effectively prevent the parties from going to court and effectively restore social relations.Even if mediation fails due to conflicting interests or values,the People’s Court can be relied upon to hear the case effectively.At present,there is still a need to further improve the youthfulness and professionalism of the mediation team to gain the acceptance and recognition of the younger generation of parties to disputes;at the same time,it is difficult to stream divorce cases into the judicial system,and the courts nationwide have not yet set a unified standard for streamlining cases.The reform of the dispute resolution mechanism cannot be delayed. |
