历史与比较视域下诉讼离婚理由及其伦理限制

The Ethical Limitation on Reason for Litigious divorce in the Historical and Comparative Perspective

随着全球化浪潮的波及,诉讼离婚理由日益出现趋同性,破裂主义逐渐成为法院判决离婚诉讼的主要依据。感情破裂是我国现行婚姻法的离婚理由,以离婚自由为价值导向,把感情视为考量标准,摒弃有责主义,使男女双方享有充分的离婚自由,不受伦理约束。比较英国、法国、美国、日本等国诉讼离婚理由,它们在赋予当事人离婚权利的同时,则会根据社会发展的需要对离婚理由进行程度不等的伦理限制,为离婚自由划定界限,体现出离婚理由立法中的民族文化传统。

With the impact of globalization,the reason for litigious divorce appears convergent,and the marital rupture increasingly becomes the criterion of judging divorce by court. Broken emotion,as a reason for divorce of the Marriage Law,originated in the law of revolutionary base areas and has gradually become the main standard of divorce proceedings. The reason for divorce arouse a lot of questions because they regard divorce freedom as a value orientation. In addition,to judge a divorce,the courts always take the existence of broken emotion more into consideration compared to their responsibilities,which results in couple＇s full freedom in divorce and getting away with the ethical limitation. Taking the divorce reason of traditional China or other countries for example,they grant divorce rights to the parties,at the same time they give them different ethical restraint according to the social needs in order to relieve the party who disagree divorce and make a balance between freedom and justice on grounds for divorce.