A Study on Reconciliation Concerning the Divorce Proceedings:in Comparison with Japanese Law

• Main Authors: Ke-Yan Lin, 林克彥
• Other Authors: Chii-Chwei Chern
• Format: Others
• Language: zh-TW
• Published: 2018
• Online Access: http://ndltd.ncl.edu.tw/handle/a8e7pm

碩士 === 國立中興大學 === 法律學系科技法律碩士班 === 106 === Accroding to Article 380, paragraph 1, of the Code of Civil Procedure, a final settlement shall have the same effect as a final judgment with binding effect.That is to say, the types of lawsuits established in the civil lawsuit of the settlement shall be applicable. There is no particular limitation on what kind of lawsuit can be applied. It is easy to say that the lawsuit of payment, confirmation of the lawsuit and the formation of the lawsuit can establish a settlement in the lawsuit, which should be undoubted. However, Rupublic of China current practice and general opinion are specifically limited to the formation of the lawsuit, and it is considered that the formation of the lawsuit may not establish a settlement in litigation. However, according to Article 45 of the Family Act of the Republic of China in the year of 101, it is clear that the divorce incident is not an unresolved incident, and Article 1052-1 of the Civil Code also recognizes that a divorce lawsuit can be settled in litigation. Does its effectiveness have the same force as the determination of judgment in accordance with Article 380 of the Civil Procedure Law? What is the difference between the effectiveness of the judgment and the determination of the judgment in Section 380 of the Civil Procedure Law? In addition, Republic of China practice and general counseling have always considered divorce in litigation, but it is considered to be a divorce. However, is there any difference between Article 45 of the Family Act and Article 1052 of the Civil Code? Moreover, according to the operation of the current practice, the starting point of the distribution of the remaining property of the husband and wife, the alimony and the claim for divorce damage seem to be limited. Whether this restriction is appropriate is not undoubted. At the end of the article, this paper takes into account the legislative cases of Japanese divorce proceedings, compares the current situation of divorce proceedings in Republic of China, and to propose the suggestions and correction directions of the previous points of defense, and hopes to solve the problem of the above issues.