离婚冷静期的制度反思

Institutional Reflection on Divorce Cooling-Off Period

离婚冷静期条款处于防止轻率离婚,维护家庭乃至社会秩序的稳定而设立。但是随着该制度设立也引发了许多争论,即该制度设立的必要性,而在争论背后实际上是离婚冷静期所蕴含的有关婚姻家庭观念的价值冲突,包括传统婚姻观念、婚姻私人性与社会性以及婚姻自由与秩序的冲突。与此同时,离婚冷静期是否是社会秩序混乱的体现,是否会造成当事人的权益损害,人们常常与离异家庭挂钩的青少年犯罪问题是否真的仅有离异造成,也是应当思考的问题。最后,面对未区分离婚冷静期的离婚情形,不应当一刀切,而应当区分排除适用的情形,以便更好地保护婚姻当中处于不利甚至危险地位的一方。

Divorce cooling-off period clause is set up to prevent hasty divorce and maintain the stability of family and even social order. However, with the establishment of this system, it has also caused a lot of debates, namely the necessity of the establishment of this system, and behind the debate is actually the value conflict of the concept of marriage and family contained in the divorce cooling-off period, including the conflict between the traditional concept of marriage, the conflict between the private nature of marriage and the social nature of marriage, and the conflict between the freedom and the order of marriage. At the same time, whether the divorce cooling-off period is a reflection of social disorder, whether it will cause damage to the rights and interests of the parties involved, and whether the problem of strong juvenile delinquency, which people often associate with divorced families, is really only caused by divorce, should also be considered. Finally, in the face of divorce situations that do not distinguish the cooling-off period of divorce, one should not make a blanket cut, but should distinguish and exclude applicable circumstances, in order to better protect the spouse in a disadvantaged or even dangerous position in the marriage.