Japanese marriage law

(1) The legislative style of China's marriage law.

China's laws are basically written laws. At present, the laws regulating marriage relations in China are mainly the Marriage Law, Interpretation of Marriage Law (I) and Interpretation of Marriage Law (II) formulated by the National People's Congress and newly revised on April 28th, 2000/KLOC-0. Basically, courts usually use the above-mentioned laws and judicial interpretations when dealing with marriage relations.

(2) The legislative style of Japanese marriage law.

Japan is one of the few countries with a civil code in the world. In the fourth part of the civil code of this country-the relative part, the special part stipulates and adjusts the conclusion of marriage, the rights and obligations of both parties to marriage and divorce. It can be said that the second chapter of this book is the same as the marriage law of our country.

2. Differences in marital conditions.

① Japan.

(1) Qualifications.

Article 73 1 of the Japanese Civil Code stipulates that men must be at least 18 years old and women must be at least 16 years old before they can get married. Because in Japan, an adult is only 20 years old. Therefore, for underage children to get married, they must also obtain the consent of either parent.

At the same time, Japan prohibits women from getting married less than six months after divorce or cancellation of the previous marriage, but if a woman is pregnant before divorce or cancellation of the previous marriage, she can get married after giving birth. For lineal or collateral blood relatives and lineal in-laws within the third generation, marriage is prohibited.

(2) Form requirements.

Marriage in Japan must be declared legally effective. The statement shall be made by both husband and wife and two or more adult witnesses in writing or signed by them. The place of declaration can be the place of origin or location of either party.

② China.

(1) Qualifications.

China's marriage law stipulates that the age of marriage registration in China is not less than 22 years for men and 20 years for women, which is later than that in Japan. It advocates freedom of marriage, and legal marriage is free from interference. In terms of the conditions for prohibiting marriage, it is forbidden for people with malignant infectious diseases to get married, especially those who may infect the next district, and it is forbidden to combine lineal blood relatives with collateral blood relatives within three generations.

(2) Form requirements.

To establish a marriage relationship, both men and women must go to the marriage registration office to register their marriage in person, otherwise it does not belong to the legal relationship between husband and wife. Once registered, the relationship between husband and wife is established

3. Invalid and revocable marriage.

China, like Japan, adopts the dual-track system of invalid marriage and revocable marriage. However, the scope of invalid marriage and revocable marriage is still different. Many marriages that are invalid in China can be revoked in Japan. The key difference between invalid marriage and revocable marriage is that invalid marriage has retroactivity, while revocable marriage has no retroactivity.

① Japan.

(1) Invalid marriage.

In Japan, marriage is invalid in the following two cases:

First, there is no intention to get married between the parties because of mistaken identity or other reasons;

Second, the parties do not declare marriage.

In these two cases, the first one is not stipulated in our country, and the second one is equivalent to the fact that there is no marriage registration in our country. Such a situation belongs to cohabitation in our country, which does not produce the rights and obligations in the Marriage Law.

(2) Revocable marriage.

In Japan, marriage is revocable under the following circumstances:

First, it has not reached the legal age for marriage;

Second, bigamy;

Third, it violates the provisions of the waiting period for marriage (that is, women are not allowed to remarry after six months from the date of dissolution or revocation of the previous marriage);

Fourth, the kinship that violates the prohibition of marriage;

Fifth, it violates the prohibition of marriage in adoption;

Sixth, get married by fraud or coercion.

Most of the above situations are invalid marriages in our country, and there is no provision for the third kind in our country. The fifth kind is revocable marriage in our country. The dissolution of marriage in Japan may have the following legal consequences: if the marriage relationship was not known at that time, the property obtained from the marriage relationship should be returned within the limits of its existing interests. If you know the reason for the cancellation at the time of marriage, then all the property obtained through marriage should be returned, and the other party should be liable for damages when it is in good faith.

② China.

(1) Invalid marriage.

According to article 10 of China's Marriage Law, a marriage is invalid in any of the following circumstances:

First, bigamy;

Second, there is a kinship that prohibits marriage;

Three, suffering from diseases that doctors think are not suitable for marriage before marriage, and they are not cured after marriage;

Fourth, it has not reached the legal age for marriage.

(2) Revocable marriage.

According to the provisions of article 1 1 of China's Marriage Law, the coerced party may request the marriage registration authority or the people's court to cancel the marriage. If the coerced party requests to cancel the marriage, it shall do so within 1 year from the date of marriage registration. If the party whose personal freedom is illegally restricted requests to dissolve the marriage, it shall do so within 1 year from the date of restoring personal freedom.

4. Different divorce procedures and conditions.

(1) divorce procedures and conditions stipulated by Japanese laws.

Like China, Japan adopts divorce by agreement and divorce by judgment.

(1) divorce procedures.

First, divorce by agreement.

In Japan, divorce by agreement is similar to that in China, and it needs to be put forward orally or in writing by both parties and more than two adult witnesses. The application method is basically the same as the Japanese marriage application.

Second, the referee divorced.

One spouse can file a divorce lawsuit for legal reasons. Judicial divorce procedure in Japan includes three steps: mediation divorce, trial divorce and judgment divorce.

Third, mediate divorce.

The party requesting divorce should apply to the family court for mediation. If a party directly files a divorce lawsuit without applying for mediation, the court shall decide to transfer it to the family court for mediation or handle it ex officio. In divorce mediation, if the parties reach an agreement on divorce, and the mediation committee thinks that its contents are reasonable and recorded in the mediation book, the mediation divorce is established and has the same effect as the final judgment.

Fourth, the trial of divorce.

If a divorce cannot be established through mediation, the family court may, when it deems it necessary, listen to the opinions of the mediation committee, proceed from the interests of both parties, and conduct a divorce trial ex officio on the premise of not violating the will of the parties. At this time, only when the two sides agree to divorce, but can not reach an agreement on property division or other issues, can it be carried out. When the mediation committee puts forward a reasonable solution and convinces the parties to accept it, but the parties unreasonably refuse to accept it, the family court can enforce the content of the solution. However, if one party refuses to accept the trial of the family court, he can raise unreasonable objections within two weeks, thus making the trial of the family court invalid.

Fifth, judge divorce.

When the mediation divorce is not established, and the divorce has not been tried, or although the divorce has been tried, but the trial of divorce is invalid because of the objection raised by the parties, the parties may bring a divorce lawsuit to the ordinary court. The lawsuit will be tried in personnel proceedings. In the lawsuit, divorce, claim for solatium, property division, custody of children and other issues that are inseparable from divorce are solved together. If you are dissatisfied with the judgment, you can appeal.

The trial of divorce is not necessarily based on filing a lawsuit, has nothing to do with the judgment of divorce, and is not subject to the statutory divorce conditions in the Japanese Civil Code. Because it is not based on the agreement of the parties, this situation is intermediate and closer to the judgment of divorce.

(2) Conditions for divorce.

In Japan's divorce proceedings, if the following circumstances occur, it constitutes a legal cause for the dissolution of divorce:

First, the spouse has an affair. It refers to all acts between husband and wife that do not abide by the obligation of chastity, including abnormal sexual behavior, which is broader than the concept of adultery.

Second, being maliciously abandoned by a spouse means giving up the obligation of cohabitation, cooperation and help without justifiable reasons. The criterion of judgment is whether you have lost the will to help each other and maintain a normal husband and wife life.

Third, the spouse's life and death are unknown for more than 3 years. No matter the cause of death or death is unknown, the three-year period begins when the last message is known.

Fourth, the spouse suffers from serious mental illness and there is no hope of recovery. Temporary and mild mental illness cannot constitute the cause of divorce. How to distinguish should be judged from the legal point of view based on the doctor's appraisal materials.

Fifth, other major reasons that make the relationship between husband and wife difficult to maintain. What is the main reason why the marriage relationship is difficult to maintain? It needs the court to make a specific judgment. Under normal circumstances, the degree of physical and mental coordination and economic situation of the parties should be considered comprehensively, and divorce is allowed only when they think that they can't maintain a satisfactory husband and wife life anyway.

But even if the above reasons exist, the court considers that it is appropriate to continue to maintain the marriage relationship from all aspects and will reject the plaintiff's claim.

② divorce conditions and procedures stipulated by China laws.

There are two ways to dissolve marriage in China: divorce by agreement and unilateral divorce. If both parties agree to divorce, they can apply for divorce registration at the marriage registration office where one party's account is located, without going to the court in person. The second way is to apply to the party who does not agree to divorce but insists on divorce, and file a divorce lawsuit with the court to dissolve the marriage relationship. The court found through trial that the parties have one of the circumstances stipulated in Article 46 of the Marriage Law, that is, if mediation fails, divorce shall be granted:

First, bigamy or cohabitation of a spouse with others;

Second, committing domestic violence or abusing or abandoning family members;

Third, there are bad hobbies such as gambling and drug abuse;

Four, due to emotional discord has been separated for two years;

Fifth, other circumstances that lead to the breakdown of marriage relationship.

If one party is declared missing and the other party files a divorce lawsuit, the divorce shall be granted.

In addition to the above circumstances, the China court ruled for the first time that it did not agree with the divorce request of the parties. Unless it has been proved that the relationship between husband and wife has indeed broken down. However, if both parties file divorce proceedings again six months after the first-instance judgment takes effect, the probability that the court will support the plaintiff's claim will greatly increase. Therefore, compared with American marriage and family law, China's divorce procedure is simple and clear, combining principle with flexibility.

5. Division of property after divorce.

(1) Japanese marriage law stipulates the division of property.

(1) Whether the property needs to be divided and the amount and method of division shall be decided by the parties through consultation.

(2) If negotiation fails, the parties concerned may apply to the Family Court for settlement. The family court will consider the amount of property obtained by both parties and all other circumstances to decide whether to divide it, and the amount and method of division. All other situations include:

First, the time for husband and wife to live together;

Second, the income and expenditure of husband and wife;

Third, the living conditions, occupations and mutual assistance of husband and wife;

Fourth, whether one party resigned because of marriage and lost his financial resources;

Fifth, the gift from one party to the other at the time of marriage or during the marriage;

Sixth, one party is unfaithful or has other reasons.

In the trial of such cases, if the divorce is due to the other party's illegal behavior, it is best to make clear whether the alimony has been taken into account when calculating the amount of divided property.

(2) China's property division.

According to Article 39 of the Marriage Law and the relevant judicial interpretation in the Supreme People's Court, the property obtained during the existence of the relationship between husband and wife is generally half of one person's property.

6. Support system after divorce.

(1) Japan's education system.

(1) Conditions for obtaining maintenance.

First, even if it includes the property obtained based on the liquidation of husband and wife's property and damages, one of the spouses still has difficulties;

Second, the property status of the other spouse allows.

(2) Maintenance quantity.

In calculating alimony, the court should consider all the circumstances. The specific time of all these cases refers to the fact that the main factors considered by the parties are "difficulties and financial resources" at the end of the final oral argument or the establishment of mediation in the trial procedure.

(3) Payment method of maintenance fee

1. One-time payment of principal;

The second is the principal paid in installments;

Third, pay money regularly;

Fourth, delivery.

In judicial practice, the first two are widely used.

(2) The provisions of our country's laws on spousal support right after divorce.

According to the provisions of the Marriage Law, there are two kinds of financial payments from one party to the other: one is economic compensation, which is based on Article 40 of the Marriage Law, which stipulates: "The husband and wife agree in writing that the property acquired during the marriage relationship shall be owned by each other, and if one party pays more obligations for raising children, caring for the elderly and assisting the other party in work, they have the right to demand compensation from the other party at the time of divorce, and the other party shall pay compensation." The second is financial assistance, which is based on Article 42 of the Marriage Law: "When one party has difficulties in life during divorce, the other party should give appropriate help from his personal property such as his house. Specific measures shall be negotiated by both parties; If the agreement fails, it shall be decided by the people's court. " Although this provision is financial aid, it is obviously different from the concept of "support". It can be seen that the marriage law of our country does not stipulate the maintenance of spouses after divorce, which is obviously easy to disadvantage the weak, especially the woman.