The Policy Orientation Of Divorce Trials And Their Judicial Practice

The work report of the Supreme People’s Court(hereinafter referred to as the "work report")not only summarizes the work of the past year(or five years)but also plans for the work of the next year.Its highly condensed judicial discourse expression provides policy guidance for the development of court trial work in practice while advocating mainstream social values.The divorce trial is one of the important contents of the court’s trial work,so the "Work Report" has paid a lot of attention to this issue over the years.By combing through the discourse expressions on divorce trial in the 1979-2018 Work Report,it is found that the fundamental policy orientation of divorce trial is to stabilize marriage and family relations and ensure social stability and unity.Of course,in different historical periods,due to the different priorities of the party and the state,the specific policy orientation condensed by judicial discourse is different.However,whether it is "relying on the masses and focusing on mediation" at the beginning of reform and opening up,or "strengthening the construction of spiritual civilization" from the late 1980 s to the 1990 s,or "attaching importance to the protection of the legitimate rights and interests of family members" after 2000,these are the specific policy orientations of the Supreme People’s Court on divorce trials in different historical periods,and ultimately serve to "stabilize marriage and family relations and ensure social stability and unity".Of course,the policy orientation concised in the "Work Report" should be followed and implemented in judicial practice,but the specific practice of divorce adjudication has its own practical logic,so it is inevitable that there will be some deviations from the policy orientation.Taking "freedom of divorce" as an example,although there are plenty of discourse expressions such as "guaranteeing the freedom of divorce" and "protecting women’s rights and interests and maintaining family harmony" in the "Work Report",in the specific practice of divorce trial,"freedom of divorce" has not been fully guaranteed,and even reasonable divorce claims may not be supported.Needless to say,it is universal that the specific practice of divorce adjudication in that the protection of citizens’ "freedom of divorce" rights is not in place,and not limited to specific times and places.The reason is not that courts at all levels are unwilling to implement the guiding policies in the "Work Report",but that the number of divorce cases and the divorce rate are rising,so that courts at all levels can only make judgments that deviate from the policy orientation of the "Work Report" under the pressure of performance appraisal and social stability.However,the deviation between policy orientation and judicial practice shouldn’t be the norm.Reducing the tension between the two can effectively ensure the unity of law and social effects.Therefore,on the one hand,the Supreme People’s Court should enhance the operability of the guiding policies as much as possible.Specifically,legal provisions and policy orientation can be refined through measures such as formulating relevant judicial interpretations,issuing relevant policy-oriented judicial documents,communiqué cases,and guiding cases,so as to effectively regulate judicial practice.On the other hand,the Supreme People’s Court’s establishment of guiding policies should change from time to time and adapt to the conditions of the times.When tensions are formed between social control and individual needs,and even when such individual needs have been recognized by the majority of people in society,or even become a universal social behavior,the establishment of relevant policy orientation should not be ignored.