台灣地區離婚案件有效談判架構之研究

Abstract

孫子兵法提到「不戰而屈人之兵」是「善中之善者」，因為一旦發動戰爭必得犧牲財物與性命，付出沈重代價；在高離婚率的台灣，如何善用孫子兵法的深邃哲理，避免繁瑣、冗長的訴訟程序，從不合適的婚姻中順利出走，是本研究探討的重點。 掺雜柴米油鹽醬醋茶現實面的婚姻，本就隱含許多恩怨情仇；在協商離婚的過程中，雙方如果不試著撇開情緒和放下立場是很難達成共識。本研究從單一律師事務所近8年來（2003年至2011年）婚姻相關案例中，在（一）未經過訴訟即達成離婚協議、（二）已提出離婚或相關訴訟後，在訴訟程序中順利達成協議或和解離婚、（三）透過訴訟解決婚姻爭議等三大類型各隨意抽取10件個案，由曾經接觸或參與個案離婚事件談判之律師，利用哈佛大學研究員Danny Ertel所定義談判成功的結構進行分析。 我們發現夫妻就子女監護權歸屬爭議所考量的利益是不衝突的，看清雙方共同利益以及不同但可以互補的利益，就能擺脫立場之爭達成協議；針對夫妻剩餘財產分配爭議，如果夫妻雙方對於法律規定認知較透徹，越容易釐清爭議項目，透過專業第三人如法官、律師、調解人等，集思廣益思考財產分配方式，有助於達成和解；至於有一方堅持離婚，一方執意興訟離婚，因雙方關係破裂，必然淪為立場之爭，往往很難透過協商方式處理，時間的經過反而是達和解的良藥。

The Art of War, an ancient Chinese military treatise that is attributed to Sun Tzu, mentioned that “to subdue the enemy without fighting” is “the acme of skill,” because a waging war will pay a heavy price at the expense of properties and lives. Facing high divorce rate of Taiwan, how to make good use of profound philosophy of The Art of War to avoid cumbersome and lengthy legal process and to smoothly walk out of unsuitable marriage is the focal point of this research paper. A marriage doping with reality of daily necessities has always been implicit in pains and sorrows. If both sides of the couple do not try putting aside emotions and standpoints during a divorce negotiation process, it will be very difficult to reach consensus. This research shall explore several marriage related cases from a single law firm in recent eight years (from 2003 to 2011) by selecting ten random cases from each of the following three categories: (1) reaching divorce agreement without going through lawsuit (2) divorce or relevant lawsuit has been filed and has successfully reached an agreement or reconciliation in the proceedings (3) resolving marital disputes through legal actions. Lawyers who have access to or participate in divorce negotiations will be consulted to proceed with case analysis by utilizing the infrastructure of successful negotiations as defined by Harvard University Researcher Danny Ertel. We found that there is no conflict of interest in the consideration of husband and wife’s disputes over ownership of child custody. If both husband and wife are able to clearly see the common interests of both sides and different but complementary interests, they can reach an agreement by getting rid of their standpoints on the disputes. For the disputes over distribution of remaining marital property, it is more likely to clarify the controversial items if both husband and wife have a more thorough understanding of legal provisions. Through a professional third party, such as a judge, lawyer, and mediator, it will help reach a settlement with brainstorming to think of property distribution. As for the situation of insisting on divorce by one side and divorce through lawsuit by the other side, it is bound to sink into dispute of the standpoints due to rupture of the relationship. It is often very difficult to approach the dispute through negotiations; the time process instead is the good medicine for reaching reconciliation under the circumstances.