论离婚诉讼的公告送达制度

On the Notice Service System of Divorce Proceedings

由于我国人口流动性大,离婚案件的当事人尤其是被告方下落不明从而缺席判决的情况屡见不鲜。法院在作出实体判决前是要通过程序性的送达方式,使得当事人了解诉讼信息从而参加诉讼的。但在实践当中,原告恶意诉讼刻意隐瞒被告下落,或是被告为了不承担法律责任可以逃避诉讼,给法院无形中增大了送达难度。法院被迫只能采取公告送达的方式,在过一定期限时推定送达成功,从而保障审判的顺利进行。公告送达是法院不得已而为之,它的弊端在实际操作中也显露无疑。民事诉讼的目的是妥善解决纠纷,离婚案件是有关身份关系的案件,其解决的好坏不仅关系到当事人双方的权利义务关系,对家庭甚至对整个社会都有着重要影响。因此,规范公告送达制度,完善公告送达方面的立法,是保障当事人诉权,破解送达困境的应有之义。

Because of the great mobility of the population in our country, the cases of the parties in the divorce case, especially the defendant’s whereabouts, are often absent. The court should pass the procedural information before making the substantive judgment, making the litigant understand the lawsuit information and take part in the lawsuit. But in practice, the plaintiff’s malicious lawsuit is deliberate. To hide the whereabouts of the defendant, or to avoid the legal responsibility of the defendant, can evade the lawsuit, which has greatly increased the difficulty of delivery to the court. The court is forced to take the way that the announcement is delivered, and it is presumed to be successful in a certain period of time, thus guaranteeing the smooth progress of the trial. Notice service is the court had to do, its drawbacks in the actual operation is also revealed. The purpose of civil litigation is to settle disputes properly. Divorce cases are cases related to identity relationship. The settlement of divorce cases is not only related to the rights and obligations of both parties, but also has an important impact on the family and even the whole society. Therefore, it is necessary to standardize the system of notice service and perfect the legislation of notice service to protect the litigant’s right of action and to solve the predicament of service.