The divorce cooling-off period system establishes the noble nature of family values
The much-anticipated civil code has been adopted by the third meeting of the 13th National People's Congress recently. This is the first law named after the Code in New China, and it is of great and far-reaching significance to promote the modernization of the national governance system and governance capabilities, and promote the reform and opening up in the new era and the socialist modernization drive. The "agreement divorce cooling-off system" in the Marriage and Family Code of the Civil Code has caused widespread public debate. According to the system, within 30 days from the date when the marriage registration authority receives the application for divorce registration, if either party is unwilling to divorce, it may withdraw the application for divorce registration to the marriage registration authority. Within 30 days after the expiry of the period specified in the preceding paragraph, both parties shall apply in person to the marriage registration authority for the issuance of a divorce certificate; those who have not applied shall be deemed to have withdrawn their divorce registration application.
Correspondingly, my country has many years of judicial practice experience in the lawsuit divorce cooling-off period system. Although the two seem to be similar, they are quite different in terms of system design and specific practices.
First, the scope of application is different. The agreement divorce cooling-off period system is part of my country's agreement divorce system and is applicable to agreement divorce through administrative registration. The parties to the divorce have reached an agreement on whether to divorce, the property and maintenance after divorce. The cooling-off period system for litigation and divorce belongs to the litigation and divorce mediation system, and the applicable subject is the litigant for divorce. The litigation litigation parties, because they could not reach agreement on whether to divorce, the property after divorce and maintenance, sued to the people's court to seek litigation relief.
The second is that the dominant subject is different. During the cooling-off period of the divorce agreement, the parties to the divorce have the dominance and control over the divorce process and can withdraw the divorce application at any time. When the divorce cooling-off period for divorce by agreement expires, within the 30-day exclusion period, the divorce registration can also be decided according to the wishes of both parties. As a part of the litigation and divorce mediation system, the judicial process of litigation and divorce has its judicial process led by the people's court, and the parties may not arbitrarily revoke or terminate the legal divorce proceedings at any time.
The third is that the subject is different. During the cooling-off period of the divorce of the agreement, the divorce registration authority does not perform any mediation, investigation or counseling work on the parties to the divorce, but only accepts negative materials and records time. However, during the cooling-off period of litigation, the court must take the initiative to carry out mediation, family investigations and psychological counseling on the case.
Fourth, the nature of the term is different. The cooling-off period for divorce by agreement is a statutory period, that is, the "thirty days" in the cooling-off period system for agreement divorce is based on the direct provisions of Article 107 of the Civil Code of the People's Republic of China · Marriage and Family Editing, and no artificial changes are allowed . The cooling-off period for litigation and divorce is a variable period. With the consent of the parties, the court may specify a cooling-off period of "no more than three months". The time limit is designated by the people's court in accordance with its powers. The people's court has the right to determine the length of the time limit and may decide to extend, shorten or cancel the originally specified time limit according to the needs of the case.
Fifth, the legal consequences are different. After the expiry of the divorce cooling-off period for the agreement, the parties have three possible outcomes: first, the two parties reconcile and terminate the divorce registration process; second, the parties enter the agreement divorce registration process, handle the divorce registration and receive the divorce certificate; third, the contradiction between the two parties further Intensified, unable to reach agreement on divorce or property, maintenance and other issues, to enter the litigation divorce process. After the expiration of the cooling-off period for litigation and divorce, there may be three other results: First, the two parties reconcile, the people's court will record the content of the reconciliation agreement, and handle it as a withdrawal; second, the two parties reach a comprehensive divorce agreement, produced by the people's court The mediation letter, which is legally effective after signed by both parties; third, the mediation is invalid and the divorce proceedings continue.
In general, although the two divorce cooling-off periods are very different in terms of system design and operation, they all share the same path in showing the legal value: the divorce cooling-off period system is the last line of defense before the marriage is dissolved, and it is the civil law expression of the constitution to protect marriage and family . Behind the debate whether the divorce cooling-off period is an "infringement of personal freedom" is the conflict between family values and the priority of personal values. In the context of neoliberal theory occupying mainstream academic theoretical positions, personal value has been pushed to an unprecedented level. The divorce process of the agreement of "accompanied by divorce" and "isolated by divorce" as stipulated in the former "Marriage Law of the People's Republic of China" is essentially a legislative choice in which personal interests take precedence over family interests. The direct consequence of the gradual loosening and disintegration of social cells' common living functions.
In traditional Chinese culture, individuals do not exist as isolated individuals, but are closely connected with others, groups, society and even the whole nature. This traditional cultural concept represents the Chinese people's overall observation mode and thinking mode of grasping the world, and is the cultural cornerstone of a robust national spirit and common psychology. The family is the cell of society. It is a realistic framework of the rule of virtue of filial piety and loyalty. It is the original premise of the home-state relationship with the home-state homogeneity. Therefore, in the field of the marriage and family legal system, over-emphasis on individual freedom and freewheeling is the impact of the value of personal interests on family interests and is incompatible with traditional culture.
The People's Court has explored several times in the litigation and divorce mediation procedures, and further deepened the reform of the family trial method and working mechanism. Through the litigation and divorce cooling-off period system, it provided a system escort for the constitution to protect marriage and family interests. After absorbing the valuable experience of judicial practice, the Civil Code of the People's Republic of China·Marriage and Family Edition comprehensively upgraded the original "Marriage Law of the People's Republic of China" and the "Regulations on Marriage Registration of the People's Republic of China". The principle of divorce that is thoughtlessly divorced is of great significance because it is implemented and supplemented. So far, my country has established a comprehensive divorce cooling-off period system, which has established the noble nature of family values from the institutional level. But it is also worth noting that the essential elements of litigation divorce and divorce by agreement have not been modified, which shows that the legal system of marriage and family in China does not deprive the individual of the legal expression, but only accords with China in the priority of personal value and family value. The practice of legislation is perfect.
(Author: Yao Xing, Ph.D. Department of Law School of Renmin University of China)