分居制度研究民法专业论文.docx

PAGE PAGE 2 进行了深入的研究，而且对我国分居制度的具体规定提出了建设性的意见，笔者认为我 国具有建立分居制度的可能性。 第三部分，由于分居制度发源于欧洲，而我国自古没有设立分居制度的传统，所以 我国要设立分居制度，必须对其他国家或地区的分居制度进行比较研究。本文分别对英 国、法国等几个具有代表性的国家及我国港、澳、台地区的分居制度做了研究，并对这 些国家或地区的分居制度立法做了简浅的评析，总结出对我国具有借鉴意义的思想与规 定。 第四部分，笔者在上述三个部分的基础上，结合我国的实际情况，就分居的立法体 例、分居的类型、分居的法律效力等内容提出了具体的意见，以希为我国设立分居制度 尽微薄之力。 关键词：分居制度；婚姻自由；立法缺失；立法建议 Abstract Separation is used by some modern nations or districts as an important component of their national Divorce System, it means that the couple who has conflicts with each other can move out their duty of cohabitation and change their relationship of rights and obligations between husband and wife, but it does not lead to the dissolution of marriage. After a period of separation time, if the couple is back to good, the separation do its function, if they’re not, the separation can set explicitly their personal and property relationship. The family is the cell of society and the marriage is the foundation of a family, the stability of social order is based on the harmony of the marriage and family. Since the reform and opening-up, the improvement of Chinese people’s knowledge level and the freedom of the thought, China has appear some phenomenon that reflect the more and more Chinese people are a kind of reckless with the marriage, such as divorce tide and the rising rate of restores a marriage. The separation ensures the freedom of marriage, is against the attitude of hasty with divorce. Chinese legal system is only regard separation as a fact, not a regime of law. Separation is a ubiquity problem in China, there is no a special legal system to regularize these separated couple’s behaviors, so when Court hear the case for separation of husband and wife, there has no law to fallow. The function and the value of separation can not embody fully in China. This article takes the separation as research object to give some valuable suggestions about setting separation in China. This article has four parts: The first part, a true case draws f