论我国离婚别居制度的构建

发布时间：2018-06-20 01:32

本文选题：离婚 + 别居　；参考：《江西财经大学》2017年硕士论文

【摘要】：别居,是国外婚姻家庭法律中的一项重要法律制度,指的是夫妻双方通过诉讼或协议的方式暂时解除同居义务而保留夫妻关系的行为。别居源于古罗马时期的《十二铜表法》,在欧洲中世纪时期,作为基督教禁止离婚的手段逐渐形成完整的一项法律制度。随着资本主义萌芽,资本主义法律对离婚确立了破裂主义,将婚姻破裂作为离婚的理由,而婚姻破裂又必须具备法定事实,这种事实便是夫妻分居,至此,近现代别居正式形成,并在资本主义国家一直沿用至今。我国1980年婚姻法明确规定了离婚以破裂主义为标准,更加尊重个人对婚姻自由、平等的追求,突破了传统“家本位”的束缚。1989年,最高人民法院在司法解释中规定夫妻因感情不和而分居达一定时间作为认定夫妻感情破裂的理由,从此,将分居与离婚建立了联系。特别是2001年婚姻法修改时,将“夫妻因感情不和分居满二年”作为离婚的法定理由,这说明我国在法律上承认了分居是足以导致婚姻关系变更的法律事实。遗憾的是,我国关于分居的立法过于笼统,未规定分居的涵义、分居时间的起算、期间的计算,导致司法实践中分居事实难举证。在当前社会中,夫妻因感情不和分居已经是大量存在的客观事实,夫妻为达证明分居的目的,长年对配偶、子女不闻不问,形同遗弃,严重损害了家庭成员的权益及社会的稳定,需要将分居完善成独立的法律制度,来调整已经泛滥的分居现象。我国学者对移植别居存在较多争议,支持者认为别居能在促进法律发展、方便离婚诉讼及优化社会管理等方面发挥积极的作用。促进法律发展指的是能丰富婚姻自由原则的内容、衡平夫妻双方的同居权利,在形成、消灭婚姻关系之间,设立变更婚姻关系的自由权利,在主张夫妻间同居义务的同时,赋予对方以正当理由对同居义务的抗辩。方便离婚诉讼指的是方便离婚诉讼当事人提供分居法定事实的证据,简化夫妻感情破裂的认定,化解离婚当事人与法官之间的对立与冲突,节省诉讼资源。优化社会管理指的是指通过设立别居为在分居期间的夫妻,提供法律依据以调整人身、财产、子女等方面的权利,不至于因夫妻分居而失控,另外,别居为离婚障碍机制,能降低离婚率,双管齐下维护社会稳定。反对者认为别居体现的是反对离婚的价值观,破坏了婚姻自由原则,既浪费司法、行政资源,又实际淡化夫妻感情。笔者主张,婚姻自由是在法律限度内的自由,别居也是符合人道价值追求的法律制度,为适应客观现实的需要,我国应移植别居,但不是全盘接受,而是去粗存精的择优改进。为此,笔者对大陆法系的法国、德国、意大利,英美法系的英国、美国、澳大利亚等国家的别居进行了比较研究,认为我国移植别居应在别居与离婚的关系、别居的程序、别居的原因、别居的效力等方面丰富现有的法律规定。最后,结合我国法律的现状提出我国设立别居的立法建议。本文的创新之处在于收集了支持及反对移植别居的主流观点,完整地鲜明地呈现正反两种观点的争议,结合我国在法治国家建设过程中应坚持的法律制度评价原则及标准,对两种观点进行评析,尝试为双方提供止争的参考。同时,结合笔者多年的司法工作实践,从保障婚姻当事人合法权益及方便司法实践操作两方面出发,提出严格限定别居原因、规范别居的程序、合理规定别居的期间,在别居程序中坚持先行调解原则及心理干预机制等建议,力求限制别居制度的消极影响。
[Abstract]:Habitation is an important legal system in the law of marriage and family in foreign countries. It refers to the behavior of husband and wife who temporarily relieves the cohabitation by the way of litigation or agreement. It is derived from the twelve copper table law of ancient Rome period. In the middle ages of Europe, the means for the prohibition of divorce gradually became complete. A legal system. With the germination of capitalism, the law of capitalism has established the breakup of divorce, the breakdown of marriage as the reason for the divorce, and the marriage rupture must have legal facts. This fact is the separation of couples. At this point, the modern residence has been formally formed and has been used in the capitalist countries to the present. In 1980, China The marriage law clearly stipulates that divorce takes rupture as the standard, more respecting the individual's freedom of marriage and the pursuit of equality, breaking through the restriction of the traditional "family standard" for.1989 years. The Supreme People's court stipulates that the husband and wife are divided into a certain time as a reason for the breakdown of the husband and wife in the judicial interpretation. In particular, when the marriage law was amended in 2001, the legal reason for the divorce is "the husband and wife who have been separated for two years because of their feelings of disharmony", which shows that our country has legally recognized the legal fact that separation is sufficient to lead to a change in the relationship of marriage. The calculation of separation time and period leads to the fact that it is difficult to prove the fact of separation in the judicial practice. In the current society, the husband and wife have been a large number of objective facts because of the disintegration of their feelings. The husband and wife are the purpose of proving the separation of the husband and the spouse, the children are discarded and abandoned, seriously damaging the rights and interests of the family members and the stability of the society. It is necessary to improve the separation of separation into an independent legal system to adjust the phenomenon of inundated separation. There are many disputes over the transplantation of Alien Residence in our country. The supporters think that other people can play an active role in promoting legal development, convenient divorce proceedings and optimizing social management. The content of the principle is to equate the cohabitation rights of both husband and wife, to establish and eliminate the marital relations, to establish the right to change the marriage relationship, and to endow the other party with the right reason to defend the obligation of cohabitation at the same time. The convenience of divorce litigation refers to the legal fact that the parties to the divorce proceedings are convenient for the divorce proceedings. The evidence is to simplify the identification of husband and wife's emotional breakdown, to dissolve the opposition and conflict between the parties and judges of the divorce, and to save the litigation resources. The optimization of social management refers to the right to adjust the rights of people, property and children by setting up a separate residence for the husband and wife during the separation, and not losing control of the separation of the husband and wife, and the other, As a mechanism of divorce, the divorce rate can be reduced and the divorce rate can be reduced and the social stability is maintained. The dissenters believe that the exclusion of divorce is the embodiment of the values of divorce, the principle of marriage freedom, the waste of justice, administrative resources, and the actual desalination of husband and wife's feelings. In order to meet the needs of objective reality, the legal system of the pursuit of value of the Tao should be adapted to the needs of the objective reality, but it is not entirely accepted, but the best improvement of the coarse deposit. For this reason, the author makes a comparative study on the other countries such as France, Germany, Italy, Britain, the United States, Leah and other countries of the continental law system, and consider the transplantation in our country. It is necessary to enrich the existing legal provisions in the relationship between the residence and the divorce, the procedure of the residence, the reasons of the Alien Residence, the effectiveness of the alien living and so on. Finally, the legislative suggestion of the establishment of a separate residence in our country is put forward in the light of the present situation of our country's law. The dispute between the two points of view, combined with the principles and standards of the evaluation of the legal system which we should adhere to in the process of building the rule of law, evaluates the two views and tries to provide the reference for the two sides. At the same time, combining with the author's years of judicial practice, the legal rights and interests of the marriage parties and the operation of the judicial practice are ensured in two aspects. In order to restrict the negative influence of the separation system, we set out to strictly limit the reasons for the residence, standardize the procedure of the residence, and reasonably stipulate the period of the residence, and insist on the principle of mediation and the mechanism of psychological intervention.
【学位授予单位】：江西财经大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.9

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