中國의 登錄離婚立法의 發展 및 向後 課題

Abstract

Since the People’s Republic of China was founded in 1949, ‘Marriage Law of the People’s Republic of China was promulgated twice in 1950 and 1980. ‘Amendment of Marriage Law of the People’s Republic of China‘ was promulgated to solve issues of divorce registration in 2001. From 1955 to 2003, the Chinese Ministry of Civil Affairs promulgated ‘Regulation of Marriage Registration’ and ‘Measures of Marriage Registration’ to formulate detailed requirements and procedures of divorce registration. Facing the increasing trend of Chinese divorce registration, the purposes of this study are to analyze the contents and characteristics of divorce legislationand to find future direction of revising Chinese legislation of divorce registration. The main contents of Chinese current divorce legislation are reflected in ‘Amendment of Marriage Law of the People’s Republic of China’ (2001) and ‘Regulation of Marriage Registration’(2003). The divorce registration office is civil affairs division of the people’s government above the county level or village (town). Divorce shall be granted if husband and wife both desire it. Both parties shall apply to the marriage registration office for divorce. The marriage registration office, after clearly establishing that divorce is desired by both parties and that appropriate arrangements have been made for the care of any children and the disposition of property, shall issue the divorce certificates. The divorce registration has the same validity as the divorce proceedings. Divorce registration can guarantee the freedom of divorce and reflects the situation that judgment can not resolve all of the divorce problems, but it also appears disadvantages like ‘disguised divorce’. There are limited rules of divorce like the spouse of a soldier in active military service desires a divorce, the wife who is pregnant or within one year after the birth of a child or within six months after pregnancy suspension, etc. However, the jurists think that Chinese divorce registration is too simple and lack of limited rules. In order to solve the problems of divorce registration, we have faced several challenges in the future. For instance, issuing unified divorce registration reasons and judicial divorce reasons, issuing the consideration period of divorce, establishing the invalid system of divorce registration, etc.