The special guarantee path of divorce without civil behavior capabilities

In the marriage relationship without civil abilities, regardless of whether the proposed person is a person -free person -free person, the termination of the marriage relationship can only be resolved through litigation.

When the people's court hear the divorce case of people without civil abilities, people without civil behavior capabilities and spouses who have monitoring qualifications can require the agent to file a divorce lawsuit after the agent is required to maintain the legitimate rights and interests of the guardian to the greatest extent.

Before the divorce verdict came into effect, the parties of the two sides were still the relationship between husband and wife and had the right to support each other in the legal sense; when divorce, if the conditions of "economic help" were met, the court should determine that the other party gave a person who had no ability of civil behavior to have a one -time person. Economic help or certain property to ensure the normal life of people without civil behavior after divorce.

■ Li Minghe Xu Qiuyu

Family is the cells of society. The conclusion of marriage and the orderly development of society. According to Article 1041 of the Civil Code, my country's marriage system is implemented in China. Freedom of marriage includes both freedom of marriage and freedom of divorce. Compared with the freedom of marriage of ordinary people, how to ensure that the marriage rights of disadvantaged groups such as non -civil behavior and other disadvantaged groups have become increasingly the focus of attention.

Patients with mental disorders sued for divorce.

The plaintiff Wang Moujiao and the defendant Guo Mouhong applied for marriage registration in the Shangzhou District Civil Affairs Bureau of Shangluo City, Shaanxi Province on October 23, 2012. After the child was born, the plaintiff began to have symptoms of mental illness. Due to severe mental disorders, on February 13, 2014, the plaintiff Wang Moujiao was hospitalized at the Xi'an Mental Health Center. On January 2, 2016, the defendant sent the plaintiff back to his mother's residence. In June 2016, he was told to go to the court to ask for a divorce, and the court decided to reject the defendant's request. On August 25 of the same year, the plaintiff was hospitalized at Shangluo Traditional Chinese Medicine Hospital. On April 28, 2017, the plaintiff's father, Wang Mouhua, applied to the court to change the guardian of the plaintiff as himself. After the court trial, the court made a judgment on the 9th of the following month. In June of the same year, the plaintiff claimed to the court as a legal agent to ask for divorce, and asked the defendant to pay the recuperation fee, medical expenses and mental loss fees before the divorce.

The court of first instance believes that the plaintiff has not lived together in January 2016, and the two sides have not lived together. The husband and wife relationship has died, and the defendant agreed to divorce, so he supports the plaintiff's request for divorce. The plaintiff is currently suffering from mental illness, no source of life, and no ability to take care of the child and the burden of support. Therefore, the child's life with the defendant is more conducive to the growth of minors.

The husband and wife have the obligation to support each other. When one party does not fulfill its support obligations, the party that needs to be supported has the right to request the other party to pay the support fee. As the plaintiff is now sick and unable to take care of himself, the plaintiff requires the defendant to pay for the support fee before the divorce.

The law stipulates that during divorce, one party is difficult, and the other party shall give appropriate help from personal property such as their housing. The plaintiff is currently suffering from mental illness. After divorce, there is indeed difficulty in life. Based on the living conditions of the defendant and the ability of the plaintiff's self -care after divorce, the defendant should give the plaintiff appropriately in terms of housing, life, and medical care.

The plaintiff asked the defendant to bear the medical expenses and did not support the expenditure because it had no bills. The defendant is required to pay mental loss because there is no factual and legal basis for support.

After the first trial, the defendant did not accept one -time subsidy and living expenses and appealed. The court of the second instance rejected the appeal and maintained the original judgment.

People without civil behavior cannot agree to divorce

According to Article 1076 of the Civil Code of my country, "If the husband and wife voluntarily divorce, the written divorce agreement shall be signed, and the marriage registration authority shall be applied for divorce registration" and the 1079 "If the couple requires divorce, the relevant organization may mediate or directly to the organization to the organization to mediate or directly to the relevant organizations to the organization or directly to the relevant organization to mediate or directly towards the organization. The provisions of the People's Court of Divorce "The legal channels for the termination of my country's marriage relations include two types: divorce and divorce of litigation.

In order to prevent the legitimate rights and interests of vulnerable groups from being infringed properly, in accordance with Article 12 of my country's Marriage Registration Regulations, "the parties who handle divorce registration have one of the following circumstances, the marriage registration authority will not accept it: (2) The provisions of the behavioral ability ... "When there is sufficient evidence to prove that one party is a person with no capacity for civil behavior or restrictions on civil behavior, the marriage registration authority will not accept its divorce registration application. That is, in the marriage relationship with no civil ability capabilities, whether the proposed person is a person without civil behavior, the termination of the marriage relationship can only be resolved through litigation.

The change of the guardian in the divorce case without civil behavior capabilities

In the divorce case, the parties should be expressed clearly whether their marriage relationship was terminated. Although there is no ability of civil behavior to have no lawsuit and cannot accurately express their wishes, they still have the qualifications of the lawsuit of a divorce case.

According to the provisions of Article 28 of the Civil Code, spouses are the first guardian of adults who have no civil behavior or restricting civil behavior capabilities. Different from other types of disputes, in the divorce litigation, the role of the spouse has been transformed into the opposite side, and there is a suspect that the legal rights and interests of the guardian are infringed. In the above case, during the illness of the guardian, the spouse neither actively fulfilled the supervisor's duties, nor did it fulfill the support obligations of the spouse, which caused the guardian to be in a state of danger and had seriously infringed the legitimate rights and interests of the guardian. From the perspective of the purpose of protecting the right to protect the lawsuit and the protection of the ability of non -civil behavior, the guardian continues to be obviously inconsistent with the spouse. According to the provisions of Article 36 of the Civil Code, those who have no monitoring qualifications in the previous order have no ability to monitor or are obviously unfavorable to the guardian. Those who are qualified to be qualified in the later order can be determined. The guardian can determine the order of "parent and child, other close relatives, resident committees, villagers' committees or other people's or organizations who are willing to serve as guardians" in order of "parent and children, other close relatives, other residents' committees, villagers' committees, or other people's agencies." In addition, according to the "Explanation of the Supreme People's Court on the Application of the People's Republic of China Code" (1), "Article 62 of the Marriage and Family Editors (1)" "Patriarch of the Civil Code of the Civil Code of the Civil Affairs of Civil Affairs" stipulated in Article 36 (1). People with guardianships can request the cancellation of their guardianship and designate a new guardian in accordance with the law; if the guardian's agent does not have a divorce lawsuit with no civil behavior, the people's court shall accept it. " When a divorce case, people without civil behavior capabilities and spouses who have monitoring qualifications can require the agent to file a divorce lawsuit after the monitoring relationship is changed to maximize the legal rights and interests of the guardian.

The guarantee path of the legitimate rights and interests of people without civil behavior

Maintaining the right to marriage is an important part of the protection of the rights and interests of people without civil behavior. Whether or not divorce will have a significant impact on the future life of those who have no capacity for civilian behaviors. The court should be more cautious about whether the relationship between people without civil behavior and their spouse and their spouses. If the relationship between husband and wife's feelings is indeed broken, no matter whether the proposed person is a person without civil behavior, the spouse will certainly have the right to divorce. However, due to the special protection of people without civil abilities, the people's courts, on the premise of judgment divorce, how to maximize the normal life of people without civil behavior, reflecting the care of disadvantaged groups to become an important proposition.

1. Payment request for payment during divorce litigation.

Before the divorce verdict came into effect, the parties of the two sides were still the relationship between husband and wife and had the right to support each other in the legal sense. According to Article 1059 of the Civil Code, "husband and wife have the obligation to support each other. The party that needs to be supported, when the other party does not fulfill the right to support, has the right to request them to pay for support". The legal debt generated by the treatment and life shall be regarded as a common debt during the marriage period, and the other party shall bear the legal responsibility of performing debt claims. If the person who has no ability of civil behavior requires the other party to pay the medical expenses and living expenses spent due to the treatment of the disease, and the other party fails to fulfill its support obligations, the people's court shall support its payment of rights to pay.

2. Economic assistance after divorce.

Article 1090 of the Civil Code of my country stipulates: "When divorce, if one party has difficulty in life, the other party with a burden should give appropriate help. The specific measures shall be agreement between the two parties; if the agreement is not, it will be judged by the people's court." When divorce, the conditions that meet the "economic help", the court shall judge that the other party gives a one -time economic help or certain property to the person who has no capacity for civil behavior during divorce to ensure that the normal ability of civilian behaviors will be normal after divorce. Life and maintain social order. One party pays for economic help or property, and it is necessary to use the party's economic withdrawal and local living standards. If one party is indeed difficult to have the obligations of the payment, it is indeed difficult for one party to pay for the one -time payment item.

Centennial cultivation has been crossed the same, and the thousands of years can be used to sleep together. The conclusion and lifting of the marriage relationship should adhere to the good marriage family view. When the people's court reviews the divorce case of people without civil abilities, it is necessary to protect the parties' freedom of divorce and the legitimate rights and interests of the parties. After the long -term adjustment of the legal divorce conditions, it should be based on the living environment, medical conditions, and guardianship of the people who have no ability of civil abilities, after the divorce and arrangement of people who have no capacity for civilian behaviors. judgment.

(The author is the Political Commissar of the Executive Bureau of the People's Court of Guancheng Hui District, Zhengzhou City; the 2021 Master of Law School of Zhengzhou University)

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