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中国当代离婚问题研究 = Study on the divorce problem in contemporary China

  • Zhang, Yun
Publication Date
Jan 01, 2007
UTS Institutional Repository
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NO FULL TEXT AVAILABLE. This thesis contains 3rd party copyright material. ----- 古往今来,婚姻一直是人们成长路上的一种期盼,好比钱钟书的“围城”,在城中,有人生活美满,如同幸福天堂;也有人备受煎熬,如同痛苦地狱。诚然,人既可受惠于婚姻,也可受制于婚姻。婚姻的本意应是促进人生的幸福,但不幸的婚姻却成为人们幸福的屠宰场,就此而言,对于不幸婚姻的解除,即是对人性的新中国成立。人们为何要冲出“城”来?法律如何为出“城”的人提供保障?如何减少出“城”所付出的代价以及给自己和社会带来的伤害? 本书充分利用社会学的研究成果和法学研究的优势,从法律社会学的视角,通过理论分析和对现有法律制度的不足进行研究,对当代我国的离婚问题作了比较深入的探讨,也对法律制度的完善作出了思考。 通过对婚姻、离婚理论的研究,从理论上对婚姻的概念和本质进行疏理,首先把婚姻概念的研究作为本研究的理论基石,通过婚姻观念的界定理清婚姻问题上的各种争论。通过研究本文归纳出婚姻的法学概念:即婚姻是一男一女通过合意确立夫妻关系、并以共同生活为目的结合,也就是说婚姻是一种男女双方依照法律规定设定夫妻权利义务的设权行为。因婚姻的本质属性是一种身份契约,是当事人在合意基础上的一种设权行为。 In his famous novel “Fortress Besieged” Qian Zhongshu used the metaphor “fortress” to describe the marriage, claiming that people outside the fortress were trying desperately to get into the fortress whereas people inside were trying desperately to come out. To be sure, people benefit from the marriage, but they can also be enslaved by it. The original meaning of marriage is to promote people' s happiness, but a miserable marriage can be a hell. It is a way of liberation to come out from a miserable marriage. This thesis is an inquiry into the issues of how people ln contemporary China manage to minimize the damage and cost of divorce in legal terms. The key findings are as follows: 1. The thesis takes an cross-discipline approach of legal sociology to tackle the complicated issues of divorce. Most academics carried out their research on the topic either in the discipline of sociology or law, and their research has resulted in many achievements. However, few have adopted the cross-discipline perspective. This research has made use of the theoretical framework in both fields of law and sociology, and probed into the complexity involved in the cases of divorce in China from the perspective of legal sociology. 2. The thesis clarifies the concepts of marriage and divorce in the context of contemporary China. After careful examination of controversies on the meaning of marriage, it defines marriage as an act of establishing rights and responsibilities between a couple. With this clear definition of marriage, it argues that divorce is an act to terminate the rights and responsibilities between a couple according to a legal/contractual procedure. 3. The thesis has made a major contribution to the discussions on institutional arrangements for divorce in China. Based on solid research on the causes of divorce in China from both dimensions of macrocosm and microcosm, the thesis convincingly argues that the legal criterion to grant a divorce should be “breaking-down of relationship” rather than “breaking-down of feelings”. It also discusses concrete procedures and timelines for litigious divorce. The findings in this thesis will provide more logical and practical base for arrangements of divorce in China. 4. The thesis has made a contribution to the research on legal consequences of divorce, with a focus on the protection of the interests (property right in particular) of children, who are subject to difficulties due to the divorce of their parents. 5. The thesis has deepened the discussions on the legal arrangements for compensation to the hurt party in the divorce. Some concrete legal proposals are made in the thesis for the legal arrangements of the compensation.

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