Viewpoint... A brief analysis of the divorce procedure of a person without civil capacity.
Published:
2022-01-10
【Abstract】 According to the provisions of the the People's Republic of China Civil Code, divorce is divided into divorce by agreement and divorce proceedings. Divorce by agreement requires both husband and wife to divorce voluntarily, sign a written divorce agreement, and apply for divorce registration in person at the marriage registration office. Because a person without civil capacity cannot identify his own behavior, a person without civil capacity cannot agree to divorce, and divorce can only be done through litigation. This paper will make some preliminary discussion on the procedure and operation skills of divorce proceedings for persons without civil capacity. 【Key words】divorce agreement pre-special procedures divorce procedures and relief channels As a marriage lawyer, I have encountered a number of divorce cases of persons with no capacity for civil conduct this year, especially when one of the spouses loses capacity due to an accident, and the other party fails to perform the obligation of support after receiving compensation. In order to protect their legitimate rights and interests, close relatives of the person with no capacity for civil conduct often choose to sue for divorce on their behalf. Now, with the emergence of some uncertain factors such as diseases and accidents, people with no capacity for civil conduct are also increasing. In order to safeguard their legitimate rights and interests, the author now discusses the system and procedures for people with no capacity for civil conduct to sue for divorce in combination with relevant laws. The reason for the divorce of a person without civil capacity in the 1. is not applicable to the divorce by agreement. First of all, people without civil capacity can only divorce through litigation. According to Article 12 of the "Marriage Registration Regulations": If a person without civil capacity or a person with limited civil capacity handles divorce registration, the marriage registration authority will not accept it. Therefore, persons without civil capacity cannot divorce by registering divorce with the marriage registration authority, but can only divorce through litigation. Secondly, because divorce by agreement requires the complete voluntariness of both husband and wife, people without civil capacity do not have this realistic condition, so divorce by agreement cannot be carried out. The most important condition of divorce by agreement is that both husband and wife divorce voluntarily. This kind of voluntary behavior is a voluntary behavior from the heart, excluding all external obstruction and interference. Therefore, both parties must submit the application to the marriage registration authority in person. The divorce application is an expression of the true meaning of the parties applying for divorce. The two parties applying for divorce registration by agreement reach an agreement on the division of family common property, creditor's rights and debts, the upbringing of children or the help to the party with difficulties in life, and consciously implement the agreement. None of the above acts can be completed without civil capacity, so divorce by agreement cannot be carried out. Again, divorce proceedings can better protect the legitimate rights and interests of persons without civil capacity. Divorce is a legal act in which the family marriage relationship changes significantly. It involves the various rights of the parties to the divorce and is an important civil legal activity. Only through litigation can we achieve the purpose of safeguarding the legitimate rights and interests of the parties. The Particularity of the Divorce Procedure of 2. Persons Without Civil Capacity The divorce case of a person without civil capacity must be preceded by special procedures, I .e. the person without civil capacity is declared and a guardian is appointed. Below I will combine a case to introduce this special procedure. Ms. Yu and Mr. Chen are a couple. Ms. Yu is now in a coma due to injuries in a traffic accident. Mr. Chen did not fulfill his obligations as husband and wife. He neither fulfilled his maintenance obligations nor filed for divorce. He also transferred the joint property of the husband and wife without authorization. According to the "the People's Republic of China Civil Code", the spouse is the first guardian of the person without civil capacity. If the guardianship relationship is not changed, the plaintiff's seat and the defendant's seat in the court will be the same person. However, with this kind of pre-procedure, this situation can be avoided. Ms. Yu's mother proposed to the court to declare Ms. Yu as a person without civil capacity and requested to appoint a guardian. This special procedure requires the establishment of a special case number, the cause of which is to apply for the declaration of a natural person without civil capacity. The specific operation is as follows: Ms. Yu's mother, Zhang, as the applicant, and Ms. Yu, as the respondent, applied to the court to declare Ms. Yu as a person without civil capacity, and applied to appoint Ms. Yu's mother, Zhang, as her guardian. After receiving the case, the court will make a record for each guardian and cross-examination of the woman's medical record. After entrusting an appraisal agency to appraise the woman's capacity, it will determine that she is a person without civil capacity based on the final appraisal opinion. After the court determined that Ms. Yu was a person without civil capacity according to the appraisal opinion, Ms. Yu's mother Zhang was appointed as the guardian. Once a guardian has been identified, divorce proceedings can be instituted and his proceedings are represented by the guardian. The situation of the divorce judgment of the person without civil capacity in 3.. 1. In view of the physical condition of a person without civil capacity, he needs to be taken care of in life and economically. The law promotes the values of goodness, so when the spouse of a person without civil capacity sues for divorce, a judgment is made against divorce. Because Article 1043 of the "the People's Republic of China Civil Code" stipulates: "The family should establish a good family style, promote family virtues, and attach importance to the construction of family civilization. Husband and wife should be faithful to each other, respect each other and care for each other; family members should respect the old and love the young, help each other, and maintain equal, harmonious and civilized marriage and family relations. "In view of the physical condition of a person without civil capacity, he needs to be taken care of in life and financially. The law advocates the values of goodness, so it will make a judgment against divorce in order to safeguard the social values that justice should guard. 2. If the court believes that the relationship between husband and wife exists in name only due to the person without civil capacity, and the relationship between husband and wife is completely broken due to the inability of both parties to communicate, it will support the divorce petition. And in judicial practice, it cannot be ruled out that people without civil capacity have more property. Their spouses neither file for divorce nor take care of the other party, but use the identity of the property manager to squander the other party's property. If they are not allowed to divorce, they may appear Under the guise of legal marriage, the rights and interests of people without civil capacity are wantonly infringed. And because people without civil capacity cannot communicate normally, the relationship between husband and wife is broken, and the dissolution of marriage is more conducive to protecting the legitimate rights and interests of people without civil capacity, and the court will make a divorce judgment. There are many cases of divorce of persons without civil capacity. The court will make different decisions based on different reasons. Some allow divorce, and some do not allow divorce. In dealing with the divorce of persons without civil capacity, the first consideration should be given to the basic survival of persons without civil capacity. If a person with civil capacity does not have other close relatives to take care of and care after divorce, his right to survival cannot be effectively protected. In this case, divorce should not be allowed. If their rights and interests are effectively protected, divorce may be granted. The people's court can neither allow the parties to divorce to restrict or deprive the parties of their right to freedom of marriage in disguise, as stipulated in the legislation of feudal society, nor can they decide divorce without considering the actual circumstances of the case. The People's Court shall, in accordance with the spirit and principles of marriage legislation, properly handle the case in accordance with relevant legal provisions and consideration of the circumstances of the case. Remedies 4. Divorce Cases of Persons Without Civil Capacity According to the different types of first instance judgment, the rights and remedies of the parties in divorce cases are distinguished as follows: 1, the court ruled that divorce is not allowed. After the divorce case has been tried by the court of first instance, if the divorce is not allowed to be divorced, the plaintiff and the defendant may appeal before the judgment takes effect. (Note: Since divorce cases involve not only status relations, but also child support and property and debt issues, the court of second instance, if it considers that a divorce should be decided, should mediate on the child support and property and debt issues, and if mediation fails, the divorce cannot be changed directly, but should be remanded. In other words, in such cases, the parties' claims to appeal are restricted.) 2. The court decides to grant the divorce. In cases where the court decides to grant a divorce, both parties may appeal. The court of second instance may, after hearing the case, change the decision and forbid divorce. After hearing the case, the court of second instance still decided to grant the divorce and made a judgment on the maintenance of children and property. 3. Cases in which the court's first-instance judgment forbidding divorce or granting divorce has legal effect. If the court makes a judgment forbidding divorce or granting divorce, and the plaintiff and the defendant fail to appeal within 15 days from the date of service of the judgment, the judgment of first instance shall have legal effect. The plaintiff and the defendant shall not appeal against the legally effective judgment. If you are not satisfied with the judgment of the first instance involving property relations, you may apply for a retrial within the statutory time limit. Additional provisions: 1. Article 28 of the the People's Republic of China Civil Code: For adults with no or limited capacity for civil conduct, the following persons with guardianship capacity shall serve as guardians in order: (1) spouse; (II) parents, children; (III) other close relatives; (IV) other individuals or organizations willing to act as guardians, However, the consent of the neighborhood committee, village committee or civil affairs department of the ward's domicile is required. 2. Article 12 of the regulations on Marriage Registration stipulates that if a person with no capacity for civil conduct or a person with limited capacity for civil conduct applies for divorce registration, the marriage registration authority shall not accept it.
[Abstract]]According to the provisions of the the People's Republic of China Civil Code, divorce is divided into divorce by agreement and divorce by litigation. Divorce by agreement requires both husband and wife to divorce voluntarily, sign a written divorce agreement, and apply for divorce registration in person at the marriage registration office. Because a person without civil capacity cannot identify his own behavior, a person without civil capacity cannot agree to divorce, and divorce can only be done through litigation. This paper will make some preliminary discussion on the procedure and operation skills of divorce proceedings for persons without civil capacity.
Key words]Pre-special procedures for divorce by agreement Divorce procedures and relief channels
As a marriage lawyer, I have encountered a number of divorce cases of persons with no capacity for civil conduct this year, especially when one of the spouses loses capacity due to an accident, and the other party fails to perform the obligation of support after receiving compensation. In order to protect their legitimate rights and interests, close relatives of the person with no capacity for civil conduct often choose to sue for divorce on their behalf. Now, with the emergence of some uncertain factors such as diseases and accidents, people with no capacity for civil conduct are also increasing. In order to safeguard their legitimate rights and interests, the author now discusses the system and procedures for people with no capacity for civil conduct to sue for divorce in combination with relevant laws.
The reason for the divorce of a person without civil capacity in the 1. is not applicable to the divorce by agreement.
First of all, people without civil capacity can only divorce through litigation.
According to Article 12 of the "Marriage Registration Regulations": If a person without civil capacity or a person with limited civil capacity handles divorce registration, the marriage registration authority will not accept it. Therefore, persons without civil capacity cannot divorce by registering divorce with the marriage registration authority, but can only divorce through litigation.
Secondly, because divorce by agreement requires the complete voluntariness of both husband and wife, people without civil capacity do not have this realistic condition, so divorce by agreement cannot be carried out.
The most important condition of divorce by agreement is that both husband and wife divorce voluntarily. This kind of voluntary behavior is a voluntary behavior from the heart, excluding all external obstruction and interference. Therefore, both parties must submit the application to the marriage registration authority in person. The divorce application is an expression of the true meaning of the parties applying for divorce. The two parties applying for divorce registration by agreement reach an agreement on the division of family common property, creditor's rights and debts, the upbringing of children or the help to the party with difficulties in life, and consciously implement the agreement. None of the above acts can be completed without civil capacity, so divorce by agreement cannot be carried out.
Again, divorce proceedings can better protect the legitimate rights and interests of persons without civil capacity.
Divorce is a legal act in which the family marriage relationship changes significantly. It involves the various rights of the parties to the divorce and is an important civil legal activity. Only through litigation can we achieve the purpose of safeguarding the legitimate rights and interests of the parties.
The Particularity of the Divorce Procedure of 2. Persons Without Civil Capacity
The divorce case of a person without civil capacity must be preceded by special procedures, I .e. the person without civil capacity is declared and a guardian is appointed.
Below I will combine a case to introduce this special procedure. Ms. Yu and Mr. Chen are a couple. Ms. Yu is now in a coma due to injuries in a traffic accident. Mr. Chen did not fulfill his obligations as husband and wife. He neither fulfilled his maintenance obligations nor filed for divorce. He also transferred the joint property of the husband and wife without authorization. According to the "the People's Republic of China Civil Code", the spouse is the first guardian of the person without civil capacity. If the guardianship relationship is not changed, the plaintiff's seat and the defendant's seat in the court will be the same person. However, with this kind of pre-procedure, this situation can be avoided. Ms. Yu's mother proposed to the court to declare Ms. Yu as a person without civil capacity and requested to appoint a guardian. This special procedure requires the establishment of a special case number, the cause of which is to apply for the declaration of a natural person without civil capacity. The specific operation is as follows: Ms. Yu's mother, Zhang, as the applicant, and Ms. Yu, as the respondent, applied to the court to declare Ms. Yu as a person without civil capacity, and applied to appoint Ms. Yu's mother, Zhang, as her guardian. After receiving the case, the court will make a record for each guardian and cross-examination of the woman's medical record. After entrusting an appraisal agency to appraise the woman's capacity, it will determine that she is a person without civil capacity based on the final appraisal opinion. After the court determined that Ms. Yu was a person without civil capacity according to the appraisal opinion, Ms. Yu's mother Zhang was appointed as the guardian. Once a guardian has been identified, divorce proceedings can be instituted and his proceedings are represented by the guardian.
The situation of the divorce judgment of the person without civil capacity in 3..
1. In view of the physical condition of a person without civil capacity, he needs to be taken care of in life and economically. The law promotes the values of goodness, so when the spouse of a person without civil capacity sues for divorce, a judgment is made against divorce.
Because Article 1043 of the "the People's Republic of China Civil Code" stipulates: "The family should establish a good family style, promote family virtues, and attach importance to the construction of family civilization. Husband and wife should be faithful to each other, respect each other and care for each other; family members should respect the old and love the young, help each other, and maintain equal, harmonious and civilized marriage and family relations. "In view of the physical condition of a person without civil capacity, he needs to be taken care of in life and financially. The law advocates the values of goodness, so it will make a judgment against divorce in order to safeguard the social values that justice should guard.
2. If the court believes that the relationship between husband and wife exists in name only due to the person without civil capacity, and the relationship between husband and wife is completely broken due to the inability of both parties to communicate, it will support the divorce petition.
And in judicial practice, it cannot be ruled out that people without civil capacity have more property. Their spouses neither file for divorce nor take care of the other party, but use the identity of the property manager to squander the other party's property. If they are not allowed to divorce, they may appear Under the guise of legal marriage, the rights and interests of people without civil capacity are wantonly infringed. And because people without civil capacity cannot communicate normally, the relationship between husband and wife is broken, and the dissolution of marriage is more conducive to protecting the legitimate rights and interests of people without civil capacity, and the court will make a divorce judgment.
There are many cases of divorce of persons without civil capacity. The court will make different decisions based on different reasons. Some allow divorce, and some do not allow divorce. In dealing with the divorce of persons without civil capacity, the first consideration should be given to the basic survival of persons without civil capacity. If a person with civil capacity does not have other close relatives to take care of and care after divorce, his right to survival cannot be effectively protected. In this case, divorce should not be allowed. If their rights and interests are effectively protected, divorce may be granted. The people's court can neither allow the parties to divorce to restrict or deprive the parties of their right to freedom of marriage in disguise, as stipulated in the legislation of feudal society, nor can they decide divorce without considering the actual circumstances of the case. The People's Court shall, in accordance with the spirit and principles of marriage legislation, properly handle the case in accordance with relevant legal provisions and consideration of the circumstances of the case.
Remedies 4. Divorce Cases of Persons Without Civil Capacity
According to the different types of first instance judgment, the rights and remedies of the parties in divorce cases are distinguished as follows:
1, the court ruled that divorce is not allowed.After the divorce case has been tried by the court of first instance, if the divorce is not allowed to be divorced, the plaintiff and the defendant may appeal before the judgment takes effect. (Note: Since divorce cases involve not only status relations, but also child support and property and debt issues, the court of second instance, if it considers that a divorce should be decided, should mediate on the child support and property and debt issues, and if mediation fails, the divorce cannot be changed directly, but should be remanded. In other words, in such cases, the parties' claims to appeal are restricted.)
2. The court decides to grant the divorce.In cases where the court decides to grant a divorce, both parties may appeal. The court of second instance may, after hearing the case, change the decision and forbid divorce. After hearing the case, the court of second instance still decided to grant the divorce and made a judgment on the maintenance of children and property.
3. Cases in which the court's first-instance judgment forbidding divorce or granting divorce has legal effect.If the court makes a judgment forbidding divorce or granting divorce, and the plaintiff and the defendant fail to appeal within 15 days from the date of service of the judgment, the judgment of first instance shall have legal effect. The plaintiff and the defendant shall not appeal against the legally effective judgment. If you are not satisfied with the judgment of the first instance involving property relations, you may apply for a retrial within the statutory time limit.
Additional provisions:
1. Article 28 of the the People's Republic of China Civil Code: For adults with no or limited capacity for civil conduct, the following persons with guardianship capacity shall serve as guardians in order: (1) spouse; (II) parents, children; (III) other close relatives; (IV) other individuals or organizations willing to act as guardians, However, the consent of the neighborhood committee, village committee or civil affairs department of the ward's domicile is required.
2. Article 12 of the regulations on Marriage Registration stipulates that if a person with no capacity for civil conduct or a person with limited capacity for civil conduct applies for divorce registration, the marriage registration authority shall not accept it.
Key words:
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