This dissertation includes preface, text, conclusion of three parts.

   The foreword part mainly explains the purpose of writing this article. Through the analysis of two causes the divorce proceedings, reveal met protection principles conflict refereeing dilemmas in divorce cases. Conflict coordination mechanism this paper will construct the principle of equal protection and conservation priority principle in the divorce proceedings, the principle of protection of interests of the measure and value judgment, choice, which provides a new method for dealing with this kind of divorce cases according to law, and.

   The text is divided into three sections. The first section introduces the principle of equal protection of marriage legal system in our country and the statutory priority protection principle, discretionary priority protection principle, analyzes the main forms of protection principles conflict, causes of conflict and the way to resolve the conflict. Conflict in the protection principle, the judge should be strict rules and discretion to combine, explain the rules correctly, the use of rules properly. The second section analyzes the principle of protection of divorce law value system structure, discusses the measure of divorce proceedings value judgment and interests. On the adjustment of interests, due both to meet the individual interests, and should meet the needs of social development. The order of value of high protection principles are generally preferred to apply the principle of the order of value low, parity order principles should be integrated into the specific circumstances to choose to apply the balancing of interests, and as far as possible to reduce the interest expense. The third section discusses the conflict in the divorce lawsuit protection principles, how to choose suitable protection principle. This paper describes the selection of suitable problem of protection principle in whether to grant the divorce, child custody, the right to ownership of common property division and economic help, the focus of controversy.

   The conclusion will divorce protection principle conflict is summarized.

   Key wordThe principle of protection of divorce conflict of interests of the measure is value judgment

   One, foreword: divorce litigation judgment confusion

   In recent years, divorce litigation cases showed a rising trend year by year, the troubled marriage parties look forward to their own interests through litigation to obtain legal acknowledgement and protection. In judicial practice, because of the protection principles and norms of the law system of marital family is highly abstract and overlapping applicability, leading to conflict of laws, there are some difficulties in the people's Court of the parties to coordinate the interests of all parties.

   (a) two parts by the appeal case

   Case 1: the plaintiff a (male) and the defendant wumou (female) in 1993 married, gave birth to two sons. In 2000, Wu suspected of a having an affair, so always quarrel, in 2002 two men separated. Section one in 2003 and 2004 two times successively divorce to the court, the first court rejected, second times for one fails to appear in court, by withdrawing treatment. The first half of 2005, both work in Shenzhen, during which the two sides have relationship. In May the same year, a third divorce to the court proceedings, both sides of the controversy over whether is the feeling of husband and wife have indeed broken. Wu argued that couples did not completely broken, resolute don't agree to divorce. The first instance court mediation fails, after hearing that the defendant, original, because of gossip problem happened contradiction, but the defendant Wu said to forgive the plaintiff, common later in life as long as both sides to strengthen communication, mutual understanding, mutual faithful, still can build harmonious family; a plaintiff claims couples that have been rupture of the view the defendant Wu is not recognized, and the plaintiff did not provide sufficient evidence to prove. Therefore, rejected the plaintiff's request for divorce. Section of a certain appeal, appeal. The court of second instance if both parties in the voluntary premise, eventually the appellant and appellee a Wu agreed to lift the relationship of marriage, to reach a mediation agreement and child support, distribution of property and other issues.

   Whether or not to approve the problem about divorce request, the legislation with the "standard relationship has been broken up" as the basis of decision. But the marriage law and the relevant judicial interpretation of the provisions of several should divorce case, not universal. Many scholars believe that the legal conditions, the husband and wife "actual feelings break" is the judgment of divorce, questionable in regulating object. Because of its nature and function, the law can only face the facts and to analyze, and then by the judges make reasonable discretion; "love" is a kind of existence in the heart of the subjective emotion, external performance in social activities and in real life it and people are not absolute fit, feeling of husband and wife more specific, it is very difficult to accurately grasp.¹In the divorce proceedings, divorce party thinks that the feelings of both sides has broken, do not want to divorce party both sides agreed that the feelings do not rupture, resolute don't agree to divorce is common, often couples each sticks to his argument, unable to prove. In the trial practice customary practice is, if the first sued for divorce, so long as does not have the legal condition of divorce, the court first mediation is not divorce, if the mediation fails, the lack of evidence judgment not divorce. In this way, can not properly resolve family conflicts, in fact, the repeated prosecution rate is relatively high, and even some cases because of the contradiction is not timely dissolve into criminal cases. Also some of the adjudication of the case, in fact reflects more give priority to the protection of the rights and interests of women's position. For example, the man sued for divorce, the woman's resolute don't agree to divorce, but the judicial mediation is invalid, even tried to identify the man to be together with others, the implementation of family violence and other statutory wrong during the marriage, still take care of the woman from the priority for standpoint, the judgment does not divorce. On the contrary, the woman filed for divorce, the opposition, and the mediation is invalid, supports the appeal, the judgment of divorce. This treatment, because regardless of the general emotion or feelings of compassion, is usually the woman, and the woman than the more unwilling to make concessions. But to do so, nominally give priority to the protection of the rights of woman, in fact can not effectively deal with matrimonial disputes, easily lead to new marital conflict, will eventually damage the legitimate rights and interests of women and others, also easy to cause the man again filed a lawsuit or an appeal. Starting from the basic spirit of China's marriage law, for both men and women's legal rights and interests should be protected equally, also should be given the priority protection appropriate, so it is difficult to determine in the feeling of husband and wife situation, how the referee can fully, reasonably protect the legitimate rights and interests of both men and women?

   Case two: the plaintiff and the defendant Xiong (male) Ji a (female) got married on 1994, 1996 the birth of a female bear xx. Beginning in 1997, two people often family quarrel. Xiong in 1999 March to initiate divorce proceedings, the mediation and withdrawal, in November the same year to sue, because Ji a pregnant, be sentenced to not divorce. After a move back to his father live ji. In 2000, bear a migrant workers, in August of the same year he picked up her daughter bear certain live with. In 2001 June, bear a third divorce to the court. Court of the first instance that, both due to discord and separation, feelings that have been broken, and bear a daughter has been recently with the Ji a life, both in life and forged a profound friendship should be the mother and daughter, Ji a raise, so the decision to allow Xiong and Ji a divorce, daughter bear certain by Ji a raise, bear a month give support 170 yuan to bear certain independent life time. The court and the division of common property and common debt. Ji a verdict of the first trial, appeal, said poor its body condition and no source of income and housing, and the appeal by a teacher Xiong, housing, income stability, bear a daughter shall be borne by the appeal bear a raise; the separation of raising children alone, the appellee should bear to give a one-time financial help fee. The second instance court think, in the custody of the children on the problem, in view of the actual economic situation between the two sides, by the bear a raise her daughter on the growth due to favorable; Ji a non fixed income, which should bear the cost of bringing up children according to the relevant judicial interpretations, according to the average income of the same industry determine the monthly income, monthly income and the 20% bear; Ji a divorce without fixed income and housing, the difficulties of life, and since the two sides separated Ji a alone raising children pay more duty, half may refer to the separation of children during the cost of living for a one-time cost of economic help. Therefore, to bear a daughter by the appellee bears a raise, the appellant Ji a monthly payment tending costs 80 yuan to the only 18 years of age; the brown bear a payment of a one-time economic aid appellant Ji 5000 yuan.

   Determine directly raise children, related to the vital interests of the parties and their children, one of the focus problem is also prone to dispute the two sides. On the determination of children fosterer, China's "marriage law" provisions from two aspects, one is the child is still in the breast-feeding period, two children have not breast-feeding situation. The case is the second case. According to the provisions of the relevant judicial interpretation, should be conducive to the physical and mental health of children, protect children's legitimate rights and interests of both parents, combined with the ability to raise and support conditions situation resolved, and the provisions of the four kinds of discretionary priority cases, such as "living longer with their children, to change the living environment is obviously detrimental to their health the growth of children", "with his life, favorable on the growth of children, and infectious diseases, the other party has permanently or other serious illness, or other is not conducive to children's mental health situation, not living together with their children". In this case, from the point of view of maintaining the interests of children, Ji and bear Moujun has priority access to direct custody conditions, the people's court how to measure the priority conditions both pros and cons? Without considering the Ji in appeal to give up the real reason why direct custody, the court of first instance according to the tightness of the mother and daughter living make a direct custody by Ji a exercise judgment, whether appropriate?

   (two) the gap between legislation and judicial reality

   Our country at the beginning of new China on the development of the marriage law, the principle of protection and a series of legal norms, based on these principles and guidance, provisions of the legal norms of a series of divorce disputes and protection measures, for many years and made the formulation, revision and supplement to the. There are still difficult to adapt to the place, but the existing legal provisions and judicial practice. The actual situation of legal norms existing often can not meet the specific law, free from reality, the reality is far more legal rich. The normal operation of the social relationship is the process of any universal norms are not included, among them nowhere without individual norms formed by individual understanding between participants.²The principles and criteria of legal principle as the guiding ideology, basic legal norms, to avoid any legal interpretation and inference and disordered function. Therefore, in these countries, the application of the principle of adjustment brought about by clear rules to make law to get results improper integration function.³But the principle of protection of marriage and family law system in the application in the divorce proceedings, also has the conflict with each other, so that coordinate the interests of divorce is lack of clear guidance, the difference between legal rule and judicial reality unbridgeable.

   In view of the above problems, this paper starts from the principle of protection of applicable in divorce proceedings, discuss and solve the conflict mechanism, on this basis, through the value judgment, to protect the principle of balancing of interests and choice, to coordinate the interests between the parties, in order to balance the interests of all parties, and dissolve the marriage disputes.

   Protection principle and the conflicts between the two, divorce litigation

   The principle of protection of divorce litigation, on the basis of the legal status of objects of protection of the rights and interests of the different and specific degree, can be divided into two categories: one is the principle of equal protection; one is the principle of conservation priority.

   (a) protection principle overview

   1 the principle of equal protection. In the divorce is mainly manifested in: both men and women have the right to put forward a divorce, no party may use compulsion on the other party or any third party may interfere; care and education of children after divorce at the time of divorce, the liquidation of assets, rights and obligations of both men and women should be equal.

   2 priority protection principle. The principle of conservation priority in divorce proceedings of national policy, historical tradition, social development based on the considerations, given the care and protection of special in marital relations, personal, economic and other aspects of the special object. The author thinks, the principle of priority to the protection of the legal system of marriage and family can be divided into two:

   (1) the statutory priority protection principle. Can be summarized as follows: 1. The protection of women's rights and interests. Strictly protect the rights and interests of women in the upbringing and property and life issues such as divorce, children after divorce, is one of the characteristics of our relative legislation. Divorce claim within the statutory time limit the man, segmentation of the joint property of husband and wife should take care of the woman's rights and interests, and about the divorce economic compensation, economic help maintain the main interest, damages, is the obvious example of this. The 1992 enactment of "law" to protect the rights and interests of women, women's marriage and family rights ad hoc special, the "marriage law" the relevant provisions of the important supplement, the mechanism of legal protection of women's rights and interests more sound.⁴China's "land contract law" provisions of article thirtieth of divorced women's legitimate rights and interests of the special protection for women, which are divorced or widowed, still in the original residence or not in the original residence but did not get the new residence of the right to land contractual management, the employer shall take back the original contract. The protection of the interests of minor children. China's "marriage law", "adoption law", "law on the protection of minors" and other laws, there are many security law of minor children. Especially in the right question relates to raise, in general is a child rights as a priority object. The protection of the rights and interests of the innocent party. The laws and regulations of our country, a party there statutory wrong, just divorce shall be granted, no longer maintain the marriage relationship, the other party no fault and suffer mental and physical damage, law, take measures, in the division of property and compensation for damage on protecting the legitimate rights and interests of the innocent party. The protection of rights and interests of one party of economic difficulties. If the provisions of law forty-second on economic help. The protection of rights and interests of one party to pay more duty. In the economic compensation issues, such as marital separation of property regime, a party to pay more services to the family, divorce, have the right to request compensation from the other party, the other party should be compensated. Of special interest to protect military and other specific groups. Such as the military, China's marriage law provisions on the active duty military spouse the right to appeal.⁵

   (2) the principle of conservation priority discretionary. On the relationship with specific conditions or in a weak position of the party, as appropriate, to give proper care (which includes both women, children, the elderly, also including the man in the particular case). This protective mechanism is composed of the social justice thought and Chinese traditional culture are derived, some basic ideas in people, such as "the weak and poor", "good production, convenient life"; some is reflected in the interpretation of the Supreme People's Court of justice, such as the relevant provisions on the custody of their children directly discretionary priority access to the means of production, a segmentation⁶The object of protection, are having a specific conditions of the party. However, the relevant provisions of the direct deprivation divorced women the right to land contractual management and land acquisition compensation, dividends and other land derived some of the interests of village rules, as well as family statute on married women do not participate in succession, widow remarriage cannot take away his house property of the patriarchal clan system, should not be used as the legitimate traditional customs and applied in judicial practice.

   (two) the application of conflict protection principle

   The principle of equal protection is the basis of marriage and family protection mechanism, is the general principle; priority protection principle is a kind of supplement, is a special principle. In general, for the special principles before the general principles, legal priority protection discretionary priority protection application, they have the application order clear. But in fact, the principle of conservation priority divorce litigation has general applicability in the judicial practice, so that its particularity and supplementary functions dilution. The principle of equal protection and conservation priority principle from the position has been difficult to partition is important, in the order of the application are often difficult after the first who.

   In coordination with a marriage legal relationship, the protection principle involved because of divorce and specific rights protection and to apply it to different degrees, conflict, the application of the law can hardly be avoided: ① in the divorce disputes involve as legal the weakness of women, usually including the underage children; II. The principle of equal protection and conservation priorities and requirements of protection principle for women are not the same, the statutory priority protection principles and discretionary priority protection principle of women, minors and the protection is also different; the protection principle is not exclusive to apply to the same legal relationship, but also applicable, are superimposed on each other. The conflict is mainly on whether granting a divorce, division of property, and child support, minor economic help and so on, between the principles of equal protection and the principle of priority protection in certain conditions are suitable, and conflicting.

   (three) the way to solve conflict

   The 1 substantive law regulation. Formulate laws and regulations as detailed as possible, will benefit distribution specific, legal, to carry out all of the details of the divorce. The issue of legal principles conflict may exist in one by one to make provisions for a clear. But the substantive law adjustment has great limitations. As mentioned before, the normal operation of the process of social relations always any universal norms are not included. The law has the stability and not easy to change, with neither the provisions are too realistic, is also difficult to adapt to the changing social situation.

   2 judges discretion. The law is clear norms, and allows the judge in the specific cases in the discretion. In the trial practice, judges more discretion hearing, mediation cases. Of course, discretion is full of variables, such as no certain standards to be standardized, so in the trial of a case is prone to discretion criterion is not a referee results, such as improper consequences. "One of the injustice is the judge and other right without the use of appropriate rules or cannot correctly interpret the rules".⁷

   Marriage and family law system in our country has been the use of various protection specification on the problems of the divorce proceedings do the necessary regulation, but a protection specification applies only to a hypothetical question, but not suitable for the specific case specific. So, the judge should transfer the hypothetical questions the focus from the application of protection specification to concrete cases. Because the judge not only need according to the legal provisions of the literal meaning of handling cases, also need the literal meaning is not enough to solve the problem, or as literal meaning may cause serious purpose too, can be flexibly legal principles or the spirit of the constitution to deal with cases, in order to make the case to be perfectly logical and reasonable solution. The ideal way is to strict rules and discretion together, that is to play the judicial body within a certain range of subjective dynamic role, in order to ease the tension between the strict rule and the actual social life.⁸The author thinks that, through the value judgment of divorce litigation protection principle, the full measure of the parties litigation interests, then selecting suitable protection principle in judicial decisions, is an effective way to solve the protection principles conflict.

   Three, the protection of value judgment and principle of interest measure

   Interest is a kind of relationship between subject and object, shown in the subject's needs and meet the need of the measures.⁹In the event of a conflict between different interests, needs to balance the various interests. Balancing of interest although mainly thinking method the legal loophole supplement and value added, but the scope is not limited to this. In the case, if the judge to master and apply thinking methods of interests of the measure, can make a more just, more reasonable judgment.¹⁰Value orientation of law ethics is the protection of the weak.¹¹How to solve the conflict between the protection principle in divorce proceedings, fully coordinated, balanced the man, woman, the interests of minor children, the need for a process of value judgments, to achieve the rationalization of the value of law. Some scholars have pointed out, it is clearly a, should become the standard of value judgment of law value, and the value of architecture; secondly, the reasonable value judgment in law each value judgment factor based on technical process. Method based on the value judgment, it requires people to certain behavior, and the effect on the society, so as to form, maintain social order.¹²

   (a) the principle of protection of law of value judgment

   Value of law is the law, the object (object institutionalized) to meet the individual, group, positive social or national needs.¹³The principle of protection of law value analysis evaluation and list the structural system, is the legal basis to solve the issue of conflict of interest.

   1 on the principle of equal protection. Divorce proceedings for the principle of equal protection from China's marriage law the principle of equality between men and women. Principle of equality between men and women is the embodiment of the socialist nature of China's marriage law, this principle requires men and women in all aspects of marriage and family life, will enjoy equal rights, obligations, prohibitions on women of any form of discrimination, abuse and oppression. Therefore, the principle of equal protection of the law value mainly lies in maintaining the equality between men and women.

   2 on the priority to the protection of minor children principle. Based on marriage family is the cell of the society, people's basic living unit. Minor children is always one of the benefits of marriage center, is also a manifestation of national or social benefits.¹⁴Minors between the future of the country, ensuring their healthy development, is conducive to the stability and development of society. The divorce will usually have a major impact on children in psychology, behavioral patterns, some people think that should not be regarded as only parents divorce between things, in the formulation of the divorce legislation should take full account of the interests of the child, make some feasible protection measures for them.¹⁵Therefore, the principle of priority protection of Minors Act value lies in the safeguard the long-term interests of the country and social development.

   The 3 priority on the protection of women's principle. From the actual situation at the present stage, the marriage law based on the general principle of equality between men and women on the establishment of priority, the principle of the protection of the legitimate rights and interests of women in the security aspects of marriage and family, to consolidate and conducive to the development of women's Liberation and socialist marriage and family system. This is a concrete manifestation of the principle of protection of women's interests and requirements. Because in general, married women's income and property, to make a living and the ability to make money, education level lower than married men, women basically belongs to the weaker members of society, marriage and family as one of their traditional way of life, is still unavoidable reality.¹⁶Priority to the protection of women's value also lies in the maintenance of the principle of equality between men and women, fully protect the legitimate rights and interests of women (the principle of equal protection and equal).

   4 on the priority to the protection of the innocent party principle. If the divorce dispute is caused by the fault of one party, although the law does not not to divorce, punishment to limit fault, but if the innocent party to its behavior does not need to assume responsibility, and is clearly contrary to the fair and justice. Therefore, in the divorce case, consideration should be given to the party at fault property punishment and to take proper care of the no fault party. Proper tilt on the division of property, a certain extent make up for the no fault party suffers in the emotional, spiritual hurt and pain. Of course, here the "care" is different from the major fault divorce damage caused by compensation.¹⁷Priority to the protection of the principle of no fault party rights and interests of the value of law is mainly to maintain fairness and justice.

   5 on the priority to the protection of life difficult party principle. China's "marriage law" forty-second article embodies this principle.¹⁸To protect and help necessary for living a hard life, reflects the ethical requirements of society and the function value. Financial aid is different from marriage during the existence of the obligation, the extension is not a statutory obligation, a responsibility and just send in original couple relationship, is a kind of rehabilitative measures of divorce. Priority to the protection of the difficulties of life a principle of law value lies in the safeguard rights and interests of the weak, maintain social stability, promote social development.

   6 on the priority protection cost obligations more party principle. According to the principle of the unity of rights and duties, obligations are paid in marriage during the existence of the party, compared with less pay obligations of a party, should have more rights, otherwise it is unfair. Priority to the protection of pay duty more party principles of law value is to maintain fairness and justice (the principle of no fault party and give priority to the protection of the basic equivalent).

   7 on the priority to the protection of military and other specific principle of group. Conception to protect servicemembers marital relations, the value of law by maintaining the stability of the army, the consolidation of the national security forces, to maintain national security.

   8 on the discretion of priority protection principle. According to the spirit of the legislation and judicial practice, as a supplementary protection mechanism, such protection, conducive to social development, help to reduce the loss, is conducive to resolving contradictions. Its value lies in through the coordination of social relations, the promotion of social development.

The specification of the principle of protection of the many different interests and thus set, together constitute the system for the protection of the law system of marital family.

   (two) a measure of justice in the interests of

   Interest in the demand. The demand for the adjustment of the legitimacy of divorce, both to meet the individual interests, and should conform to promote social development goals. Analysis of any pair of conflicting interests contradiction, we can easily find, if two conflicting interests are not related to the overall order, conflict is not justice and order, method and aim to solve the conflict which is quest for justice. This kind of justice, may appear to determine the illegal as a kind of interest and another benefit, to protect the legitimate interests, it may appear to have legitimacy in the two kinds of interests determine the conflict, the different rights in accordance with the established "level" to be protected, or of the same nature of the equal rights to be protected.¹⁹The different value of law, can make the grade of distinction, in accordance with the order of value principle, in the event of a conflict of different ranks of the law of value, should apply the general in accordance with the high grade is better than the low grade principle. No class distinction, in general should be based on a measure of interest, specific situations, considering the subject's needs and interests, proper attention to the interests of all parties, to choose suitable protection principle. At the same time, according to the balance of value conflict in the implementation of the principle of proportionality, a certain value to other value of the expense situation, should make the value of the damage is reduced to a minimum.²⁰

   1 in general, minor children interest is first. Our country pay attention to the protection of the interests of minor children is superior to protect woman's interests, the amendment of marriage law when someone put forward a divorce is the biggest hurt children division of property, should first consider the interests of children, so, the new "marriage law" thirty-ninth article will be stipulated in the marriage law "child care" rights, mentioned "the woman in front of care benefits".²¹But the minor national future, give priority to protecting the interests of children is the embodiment of the interests of the state and society.

   The 2 women's interest to interests of children, is a second bit. From the value judgment, the principle of equal protection and the principle of priority protection of women value is equal, equal protection of the interests of both men and women, mainly to women's status and rights against inequality violation based on the consideration of course, in a few cases (such as in actual life, the relatively weak), which is a the man's position and interests will not be not treated equal significance.

   3 other protection principle value of law is to supplement and coordinate on minor mechanisms for the protection of children and women's interests, is in a subordinate position, or third bits, but sometimes also should give priority to reflect. If the interests of children and women's interests have reality or the foreseeable future full security, applicable in the trial of a case should highlight the other protection principle, in order to better balance and balance the interests of all parties.

   Four, the protection principle of selection in divorce proceedings the focus of controversy on the application

   Based on the system structure principle of protection of law of value, we are dealing with specific cases, also need according to the reality of the myriads of changes, measured value judgment and interests around the focus of dispute parties, make the case results more in line with the actual needs of the parties, more in line with the spirit of the law, fully embodies the social equity and justice.

   (a) should be granted the divorce problem

   A court ruling divorce or not is suitable the equal protection principle or apply the principle of conservation priority issues, I think, to the couple's divorce litigation, apply the equal protection principle; the right to win a lawsuit for divorce proceedings, priority protection principle, namely the divorce litigation benefit, priority should be given to the protection of the interests of the judge, decide whether granting a divorce. We should protect the interests of the divorce proceedings, mainly refers to the interests of both the husband and wife, but also including the interests of children.

   1 when a party has the legal wrong, should be applied to give priority to the protection of the innocent party principle. For the result, extramarital sex outside marriage, domestic violence, bigamy and other reasons of divorce proceedings, it is necessary to public power to intervene, can be in accordance with the provisions of article sixty-fourth of civil procedure law, increase in scope of investigation and evidence collection, verified a legal divorce fault judgment, should be granted a divorce, in order to fully the protection of the legitimate rights and interests of the innocent party. At the same time, should pay attention to, give priority to the protection of the innocent party does not equate to any claim priority no fault party support, such as a party there statutory fault and no fault party does not agree to divorce, should no longer support list.

   2 in addition to a party official, about the divorce problem, is applicable to give priority to the protection of women's principle, or apply other priority protection principle, not lump together. When unable to determine whether couples that have been broken, from both sides of the actual conditions of life, considering both the procedural requirements, as a measure of interest, starting from the conservation priority of maximum value interests, decide whether to grant a divorce. In the interests of the measure, it is necessary to consider the marriage, the family as the couple especially the significance and value of traditional way of life the woman, but also consider the not harmonious marriage of spouses and minor children life has caused and will cause adverse effects, and more to sustain or judgment for dissolution of the marriage of both sides and their children may bring benefits and adverse possible. Not simply because it is the first time to sue for divorce, not a good judge to sentence not divorce; nor can it tend to protect the rights and interests of women, will support the claim; to divorce this no conditional status behavior, such as the condition of the woman (property, children and other requirements) agree to divorce, should be banned, the reason lies in the maintenance of public order and good customs.²²At the same time, to strengthen the mediation, strengthening education and interpretation work, makes both parties understand the court's judgment.

   Based on a case: one in three years has three times to the people's court for divorce. Although the 2005 segment with Wu in Shenzhen during the work, often have dealings, but from the present situation of marriage based on love after marriage, divorce, the relationship between husband and wife and have no and can and other aspects of analysis, couples have cracks. Whether it has been completely broken, it is difficult to judge. Try to weigh the benefits of maintaining, compare the benefits of marriage and the lifting of the benefits of marriage. Although Wu Moujian will never agree to divorce, and said the two sides can still build a harmonious family, but over the years, marital conflict, not only to a painful, the hope to get rid of marital disputes of interests can not achieve, but also to the Wu brings the pain, the hope to have a normal married life benefits are difficult to achieve this life, the child would cause more damage. Therefore, the referee does not grant divorce divorce, more conducive to the parties and minor children in the future life, more in line with the realistic interests and long-term interests of both sides.

   (two) determine the issue directly custody of children

   In the direct custody parents on the issue, the current legal system is based on the "children's interests protection priority" principle, in the breast-feeding period "general principles of the priority support", in lactation period "discretionary priority support" principle. At present, in the real life, for the support of minor children after divorce, both for the raising, also have responsibility support.

   1 couples both hope to gain custody of their children directly, and have a "discretionary priority custody" conditions, give priority to the protection of the law on both sides have direct custody. In this conflict, the author thinks, coordination "conflict between discretionary priority", should be based on "the interests of children first", by "discretionary priority" condition has a dominant position in the party get direct custody, to maximize the protection of the interests of children. If the conditions, should be interest measure. At this time, direct fostering right for any one party has the expectation interest, or emotional, or a way of life and quality. From the basic spirit of the law system of marital family, more high maintenance emotional interests than the interests of maintaining the material life level, more in line with the social ethics value.

   The 2 one or both partners based on reasonable reason, don't expect to get a child custody rights, protection law has reasonable interests on both sides or one side. And the interest of the children is to fully consider and protect. At this point, determine directly the custody of ownership, it is necessary to fully protect the interests of minor children, also want to consider one or both partners benefit damage, the balance should be integrated to the damage principle of minimal determining direct custody.

   According to this analysis two cases: the plaintiff and the defendant Xiong (male) Ji a (female) divorce proceedings, bear a daughter in the past two years has been with the Ji a life, this is Ji a has a priority in rearing conditions. Ji a poorer body condition and no source of income and housing, and its not directly raise the bears defense. The brown bear some teachers in the work, the income is stable, housing, basic also has a priority in rearing conditions. Weigh the interests of children, from the custody of the woman usually in life can more considerate care of children, this is the general male do not possess; by the man raised in the economy can give their children a better meet. Both sides support conditions of their respective advantages, from another perspective, from the custody of the woman or raised by man are not obvious damage to the legitimate rights and interests of the children. Measure and the interests of both sides, Ji as a result of its own difficulties, do not want to raise children, in order to reduce the stress in your life, and bears a better economic conditions, raising children does not cause damage to the. So, the child directly raise determined to bear a more reasonable, not only does not harm the interests of children, but also take into account the interests of the woman.

   (three) the problem of protecting the interests of common property division

   According to the "marriage law" legislative spirit, in the division of property, should be to give priority to the protection of the interests of minor children and women as general principles. But in the judicial practice, not dogmatic according to the priority protection principle shall be treated, regardless of other interests, or unfair. In the selection of suitable what kind of protection principle, should clearly realize, care of children and women's interests is the main priority for practical need them,²³But also pay attention to balance the interests of all parties.

   1 of the legal protection of minor children principles and statutory conservation priority conflict women principle. For example, the living conditions, the survival ability of relatively weak position, the bear the obligation to support children, and children because the disease need special care, in this case, the property should be appropriate to take care of the woman. Do not say that the interests of children as the important interests or do not need special protection, but because can take other remedy. The child care can be reflected in the certain commitments (such as to pay a certain amount of child support, an appropriate way of care), resulting in a weak position of the woman and child rearing obligation bear man can get proper care, consideration and balance the interests of all parties concerned.

   2 the principle of equal protection and legal protection priority conflict women principle. For example, both men and women living conditions are, and are not sufficiently strong survival ability. In this case, the division of property, or should be properly take care of the woman. Although the life ability is weak, their rights and interests should be protected, but on the basis of the national spirit of law and policy, the woman can be slightly more distribution of some property, not only the interests of serious damage to.

   The principles and legal priority conflicts between the protection of women give priority to the protection of 3 discretionary principle. For example, the living conditions, ability is in a strong position, the living conditions, weak. If there's life after divorce is difficult, even need her help, at the time of divorce more appropriate to the property does not violate the principle of.²⁴In this case, the woman need not be given special protection, but should be given in a weak position of man must care.

   4 of the legal protection of minor children, women and the legal protection of non conflict principle fault principle. As in the weak position of the hidden, transfer, sale, has damaged the joint property of husband and wife, forge debts and other legal fault, and a strong position in the no fault party, should how to apply the protection principle to make reasonable adjustments of the interests of both sides. This conflict, generally, to protect the life as the premise, in need of care must also be taken care of. Not because she has a fault, kill her.²⁵In this case, should be based on the extent of the fault and the weak position in the party needs to get help, distinction. If the fault causes the family common property losses, while the fault party has difficulties in life, have a smaller, generally not practiced without. If the error did not lead the family common property losses, to give more care to the innocent party may.

   5 of the legal protection of minor children, women and convenient principle favorable to production, life sometimes conflict between principle. Such as housing ownership or use right of ownership, the woman after divorce without shelter and insisted the original housing is made, and the production or life is closely linked with the support of the minor child; a party without housing, and the other side of the housing has a special connection. In this case, according to the equilibrium value conflicts of the proportion principle, should be in priority "convenient production, good life" principle of the division of property, priority shall be given to a specific association with the property interests, in order to reduce the damage to the interests of the unnecessary, or raising the underage children to adopt flexible manner take care of (compensation rights, living as granted for a certain period to a certain amount of etc.). For example, the plaintiff Cheng (male) and the defendant Wang (female) divorce dispute case, both parties agree to divorce, but the use right of the former residence of a unit of public houses by the differences, Wang put forward after the divorce of no fixed abode, request the court to the public houses by the sentence by the rent. The court found, the plaintiff a trip on the lease of public houses by the marriage, and the value of 4 Yuan decoration, and Cheng and Wang wedding for a short time. Court held that the public houses by the sentenced by a single process more reasonable, Wang can give the economic compensation in accordance with slightly more than 50% of the value of the amount of public housing renovation. Then ruling public houses by Cheng continue to rent, a one-time payment of economic compensation 22000 yuan wang. After the divorce of public housing tenancy, if the man before marriage to invest a lot of money for house decoration, and close to work need, and the woman gave the housing request, this time give priority to the protection of interests of the request the inevitable damage to the housing benefit, and let the woman self acquire leases after giving economic compensation fee the man is difficult to. In this case, to minimize the damage to the value, it does not have to be leased public houses by reserved for the enjoyment of the rights, while the man pay economic compensation, appropriate amount of give the woman the man, the woman's life insurance available, to balance the interests of both parties.

   (four) the economic aid

   From the legislative spirit, to help the economy should be applied conservation priority economic difficulties Party principles, and is mainly reflected in the help. Of course, both the woman or man, as long as the economic help condition, in the proceedings should be fully considered. In the specific economic help, take care of minor children and the benefit is also considering the practical need them, and we should pay attention to balance the interests of all parties.

   1 protection difficult Party principles and the protection of non conflict fault principle. Given the economic difficulties the appropriate help is the marriage legal system in our country should have meaning. If the economic difficulties the party has fault, in the civil law should bear corresponding civil liability and adverse consequences. But the marriage and family law is different from the common civil law, is that it has a strong ethical and social benefits of color, in a weak position of the innocent party, should also be given the necessary care and help. For example, the plaintiff bears a (male) and the defendant Zhang (female) divorce dispute case, because Zhang illness can not bear, quarrel often occur on both sides. The 2001 December agreement divorce, dispute again, Zhang hold knife will bear a head gash, Xiong the divorce to the court, and voluntarily give up on the division of matrimonial property. The court of First Instance judgement of the divorce, the joint property of husband and wife to the defendant Zhang and Zhang paid by all, bear a mental damages of 500 yuan. After Zhang Appeal said his serious illness, life to oneself, a request for financial help bear. The court of second instance, the appellant Zhang stabbed appeal by a bear, family violence, the amount of compensation for the damage of appropriate decision. The appellant Zhang Ailing, no fixed occupation, no shelter, the smaller the value of property at the time of divorce, in accordance with the law at the time of divorce life difficult situation, the appellee shall give the appellant Zhang Xiong, a proper economic help, consider Xiong's economic status and living conditions, the economical help should not be too high, then ruling by a payment of the appellant appeals Xiong Zhang economic help fee 5000 yuan.

   The conflicts between the 2 women protection principles and the protection of specific interest party principle. Such as housing property as a form of economic aid, discussed previously, in principle to take care of her, but when the man with special interest on the specific property, need to be protected should be discretionary, comprehensive measure and the interests of both sides, not dogmatic shall be handled according to the priority of female party interests, or it will lose fair.

   Five, the conclusion

   For divorce disputes, when substantial property, rights at stake, most people are not willing to make concessions, in this case, people seek for the benefit of one party strategy one damaged, while ignoring the effects of conflict in social relations.²⁶Under this background, a lot of divorce proceedings contradiction, opposition and strong. Conflict between the principle of protection of divorce proceedings, the coordination of the interests of disputes focus on more complex and difficult, brought confusion to the judicial work. In this paper, analysis and reasonable judgment based on the principle of protection of divorce law value, the interests of all parties in divorce proceedings were measured, contribute to the reasonable selection of suitable protection principle, reasonable distribution of interests of all parties concerned, the result of the judicial referee can more effectively protect litigants and their children the legitimate rights and interests, promote judicial justice and social harmony.

 

1 Yang Dawen editor: "family law", Law Press in 2004 fourth edition, 185th pages.

2 see Zhang Xuejun: "research" mediation in divorce proceedings, contained in Liang Huixing editor of "civil and Commercial Law Review" seventh volumes of 149th pages, quoted Tanase Takashio: "in the dispute resolution and the judicial system" on page 126th.

3 Hou Shuwen: "judicial art of equity and Judicial Activism", contained in Liang Huixing editor of "jurisprudence" magazine 2007 first, fifty-fifth pages.

4 the same note 1, thirty-eighth pages.

5 of China's "marriage law" the thirty-third stipulation: "active duty military spouses divorce, the soldier's consent must be obtained, except for the military party is great fault."

6 see 1993 "the Supreme People's court some concrete suggestions" about people's court hears a case of divorce property division of processing tenth stipulates: "the joint property of husband and wife of the means of production, but to have the operating conditions and the ability of the party. The production data from one party to the other party should give is equal to half the property compensation." Article eleventh stipulates: "the couple jointly run no profitable breeding, planting, divorce should be conducive to the development of production, is conducive to the management to consider, be reasonable segmentation or discount."

7 (US). Rawls John: "a theory of justice", translated by He Huaihong, China Social Science Press in 1988 March edition, page 225th.

8 the same note 3, fifty-fifth pages.

9 Sun Guohua, Zhu Jingwen editor: "jurisprudence", Renmin University of China press, 2004 second edition, sixty-first pages.

10 Yu Min: "on the hermeneutics of civil law loopholes, value added and interests as the measure of" thinking, Liang Huixing editor of "civil and Commercial Law Review" sixth volumes, publishing house of law in 1997 first edition, 344th pages.

11 Shi Wenlong: "ethics of law", Chinese legal publishing house in 2006 first edition, third pages.

The 12 section: "the hermeneutics of civil law" to the Japanese, Liang Huixing editor of "civil and Commercial Law Review" Fifteenth volumes, publishing house of law in 2000 first edition, 378th pages.

13 the same note 9, fifty-eighth pages.

14 Jiang month: "rights and obligations" husband and wife, publishing house of law in 2001 first edition, 265th pages.

15 Ye Wenzhen: "the international comparison and Enlightenment of" the standard of divorce, load "Chinese marriage and family history and future", Chinese women press in 2001 first edition, 175th pages.

16 the same note 14, 265th pages.

17 Luo Sirong: "marriage and family and inheritance law", Zhejiang University press, 2004 first edition, 200th pages.

18 of China's "marriage law" forty-second article: "at the time of divorce, if one party has difficulties in life, give appropriate help the other party Ying Congqi housing and other personal property."

19 Yin Tian: "on" unfair "is better than no order", contained in Liang Huixing editor of "civil and Commercial Law Review" nineteenth volumes, publishing house of law in 2001 first edition, 324th pages.

20 see Fan Huiqing editor: "jurisprudence", Jinan University press, 2006 first edition, 158th pages.

21 Yang Suiquan: "the new marriage law", Law Press in 2001 first edition, 234Th pages.

22 (station) Wang Zejian: "the general principles of civil law", China University of Political Science and Law press, 2001 first edition, 427th pages.

23 the same note 21, 235th pages.

24 the same note 21, 235th pages.

25 the same note 21, 235th pages.

26 (US) signal: "Bo with legal portal" Huaxia press, 2002 first edition, ninety-sixth pages.

 

 

Reference.

 

Works category:

1 Yang Dawen editor: "family law", Law Press in 2004 fourth edition.

2 Yang Suiquan: "new marriage law", Law Press in 2001 first edition.

3 Jiang month: "rights and obligations" husband and wife, publishing house of law in 2001 first edition.

4 Luo Sirong: "marriage and family and inheritance law", Zhejiang University press, 2004 first edition.

5 Sun Guohua, Zhu Jingwen editor: "jurisprudence", Renmin University of China press, 2004 second edition.

6 Fan Huiqing editor: "jurisprudence", Jinan University press, 2006 first edition.

7 Shi Wenlong: "ethics of law", Chinese legal publishing house in 2006 first edition.

8 (station) Wang Zejian: "the general principles of civil law", China University of Political Science and Law press, 2001 first edition.

Editor in chief: 9 statutes "civil and Commercial Law Review", Law Press, 1997 2000, 2001 edition.

10 Wang Liming editor: "China civil case studies (kin article)", Law Press in 2003 second edition.

11 Li Ke, Song Caifa editor: "the case" marriage and family disputes, the people's court press in 2004 first edition.

12 (US) John. Rawls: "a theory of justice", translated by He Huaihong, Chinese Social Science Press in 1988 March edition.

13 (US) signal: "Bo waiting the gate to the law", translated by Deng Zibin, the Chinese press in 2002 first edition.

 

The class:

Zhang Xuejun: "1" on the mediation in divorce proceedings, Liang Huixing editor of "civil and Commercial Law Review" volume seventh.

2 Hou Shuwen: "judicial art of equity and Judicial Activism", Liang Huixing editor in chief "law" in 2007 first.

3 Yin Tian: "on" unfair "is better than no order", Liang Huixing editor of "civil and Commercial Law Review" volume nineteenth.

4 Yu Min: "on the hermeneutics of civil law loopholes, value added and interests as the measure of" thinking, Liang Huixing editor of "civil and Commercial Law Review" volume sixth.

The 5 section: "the hermeneutics of civil law" to the Japanese, Liang Huixing editor of "civil and Commercial Law Review" volume fifteenth.

6 Ye Wenzhen: "the international comparison and Enlightenment of" the standard of divorce, load "Chinese marriage and family history and future", China women press in 2001 first edition.

 

Laws, regulations, judicial interpretation class:

1 "marriage law of the PRC", published in September 10, 1980, January 1, 1981, as amended in April 28, 2001.

2 "the people's Republic of China Women's rights protection law", published in April 3, 1992, amended in August 28, 2005.

3 "the people's Republic of China Law on the protection of minors", published in September 4, 1991, amended in December 29, 2006.

4 "of the people's Republic of China Law", published in December 29, 1991, April 1, 1992, as amended in November 4, 1998.

5 "the people's Republic of China Rural Land Contract Law", published in August 29, 2002, March 1, 2003.

6 "the Supreme People's Court on certain issues concerning the application of the people's Republic of China Marriage Law '' interpretation (a)", published in December 24, 2001, December 27, 2001.

7 "the Supreme People's Court on certain issues concerning the application of the people's Republic of China Marriage Law '' interpretation (two)", published in December 25, 2003, April 1, 2004.

8 "the Supreme People's Court on the trial of divorce cases how to identify some specific opinions" couples that have been broken, December 3, 1989.

9 "the Supreme People's Court on the trial of divorce cases treated children raise a number of specific suggestions", November 3, 1993 implementation.

10 "the Supreme People's Court on the trial of divorce cases handled property division of a number of opinions", November 3, 1993 implementation.

                           (Author:Wang ChangheWeiWeiThis paperLoad"The judicial aspect"2013Years SixthPeriod A total of 139thPeriod ')