离婚冷静期制度的适用与完善

Application and Improvement of the Cooling-off Period System for Divorce

《中华人民共和国民法典》在婚姻家庭编中增加了离婚冷静期制度,旨在防止轻率离婚,维护婚姻的稳定性,完善我国离婚制度。该制度自设立以来饱受争议,社会各界质疑离婚冷静期制度存在的意义,学术界认为离婚冷静期制度的设立厚此薄彼,着重关注社会的婚姻家庭稳定而忽视个人权益的保护,未体现弱势群体的人身、财产等权益的保护措施和规定。本文通过司法案例分析离婚冷静期制度对抑制离婚率的影响,发现虽然离婚率有明显下降趋势,但是在一些情况下,离婚冷静期也变成了离婚关系中再次伤害弱势一方主体的工具,因此,差别化原则的缺位导致当前离婚冷静期制度无法充分地发挥其制度优势,本文认为,区别不同类型的夫妻矛盾制定不同的例外情形至关重要,参考域外相关规定增设婚姻家庭调解队伍可以有效帮助夫妻双方冷静思考婚姻问题,并配合完善的风险防控措施,通过以上研究,以期可以避免弱势相对人的二次伤害,降低司法成本。

The Civil Code of the People's Republic of China has added a cooling-off period system for divorce in the Marriage and Family Code,aiming to prevent reckless divorce,maintain the stability of marriage,and improve China's divorce system.Since its establishment,this system has been controversial,and various sectors of society have questioned the significance of the divorce cooling off period system.The academic community believes that the establishment of the divorce cooling off period system is biased,focusing on the stability of marriage and family in society while neglecting the protection of personal rights and interests.It has not reflected the protection measures and regulations for the personal and property rights of vulnerable groups.This article analyzes the impact of the divorce cooling off period system on suppressing the divorce rate through judicial cases.It is found that although the divorce rate has shown a significant downward trend,in some cases,the divorce cooling off period has also become a tool to harm the vulnerable party again in divorce relationships.Therefore,the absence of the principle of differentiation has led to the current divorce cooling off period system not being able to fully leverage its institutional advantages.This article believes that it is crucial to establish different exceptions for different types of marital conflicts.Referring to relevant regulations outside the country,adding a marriage and family mediation team can effectively help both spouses calmly think about marriage issues and cooperate with sound risk prevention and control measures.Through the above research,it is hoped that the second harm of vulnerable parties can be avoided and judicial costs can be reduced.