| Divorce damage compensation system is a new divorce relief system established by the2001Marriage Law Amendment.It is the necessary need for the establishment of the system to adjust the new divorce relationship and situation, and it is also helpful to supervise both husband and wife being loyal and mutually respectful to each other.Thus it will maintain equal, harmonious and civilized marriage and family relations, as well as protecting the legitimate rights and interests of the innocent party.However, due to the lack of theoretical preparation, disagreements on whether to establish divorce damage compensation system or not in considering the amendments to the Marriage Law of1980, unduly simple statements of article48about divorce marriage damages system.Therefore in the judicial practice, there are many specific problems encountered. In fact, since the system of divorce damages was established in China, the debate about its theory and operability never stopped. In theoretical circles, in the face of difficult problems in the burden of proof for the innocent party to, some scholars even declared the amendment provisions in China's2001Marriage Law about divorce damages system is an definite error.So, in our country, is there any need for having divorce and damages system? What is the value of the institution? If the system is necessary to exist, how to improve the system combining with China's national conditions? Obviously, the topic of research is not only to clarify the wrong ideas of theory, but to provide some theoretical support to improve our marriage legislation.Chapter one:Even if Marriage amendment in2001for the first time provides for the system of divorce damages, both in theory and in judicial practice, whether the divorce damage stipulated is the one "from the result of damage" or "divorced damage "(ie. divorce itself causes damage), or both, which are recognized different.The nature of divorce damages is even more mixed. All these factors tends to make the discussion of the divorce damages compensation system lose prerequisite, even diametrically opposed, because the definition of the meaning and nature of divorce damages compensation is the first premise and basic problem of applying and exploring this system. This chapter, at the outset, discusses the meaning and nature in order to lay a theoretical foundation for the subsequent seminars.The chapter argues that, since in China's Marriage Law Article46, four scenarios are violations of tortious acts, which should be subject to the provisions of Tort Liability Act. In since our "Tort Liability Act" does not exclude its application, then it shall be applied. Since itself should be applied, for China's Marriage Law, there is no necessity of stipulating provisions. From the opposite side of China's Marriage Law Article46, compensation damages is not marital tort damages (from damages), but it is different compensation damages which is the marital tort damages compensation. From other provisions of the relevant legislation from some countries or regions in the system of divorce compensation damages,"Separating the divorce damage from general tort damages are common tendencies in most countries.Marriage is essentially a identity of contract, divorce damage liability are the legal consequences of rescinding identity of contract(divorce). there is a controversy between the theories of "debt non-performance compensation" and "reliance interest compensation" over the basis of the right to claim damages compensation because of the deliquesce in the identity of contract, but the basis of the right to claim damages compensation because of the deliquesce in the identity of contract,without exception, adopts "reliance interest compensation" system. If you want to enforce the relief on the "no interest of divorce itself, it is necessary to establish a new system, the system is no longer like the tort system to require the illegality, especially the "infringement of rights", and no longer value the damage in the past, while the emphasis is on future needs. The divorce itself is not a tort, therefore, due to divorce-non-infringement act-damages should not be applied to the provisions of the infringement. To recognize divorce damage, applying the tort provisions of law is still insufficient, from the perspective of legal constitution. It would be more appropriate to set up the protection policy of the law to redress for"no interests". The right of divorce damage compensation claims is very specific right stipulated by law. Divorce damages compensation liability is neither the one for breach of contract, nor is the tort liability. But based on the relief policy considerations as the divorce produces "no interest",a special civil liability was created by law.Chapter Two:When discussing about Marriage Law in1980, scholars have huge controversy over whether it should provide for divorce damage compensation system. Although Marriage Law in1980point this out, it never solve this issue in the end. The opponents suppose that, divorce damages compensation system contradicts with the freedom principle. Some scholars further argues that,this system design is the one which are the wonderful hopes of scholars, legislators, but they are subject judgments without the practical proof, actually it does not function very well, and it is doubtful, challenged, should be substituted for divorce fostering fees system. In this respect, this chapter was combined with the views of opponents, and analyzes the value foundation of the existence of divorce damages compensation system.This article argues that freedom is one part of justice which links freedom and equity. It is also said that the limits of freedom is justice, in order to achieve justice, The human beings must make somewhat restriction of freedom. It is because that the realization of divorce freedom sometimes has to sacrifice the freedom of one party, the divorce that is a legal act will bring changes in family relationships, causes changes in social relations as well. Therefore, while in full respect for the freedom of a party to a divorce, it is necessary to adequately taking into account the other party and the interests of the minor children who have suffered harm as a result of divorce, and limit the abuse of the divorce freedom. The establishment of Divorce damage compensation system meets the moral requirements of the marriage freedom, and contributes to the realization of the marriage freedom and divorce. Therefore, the freedom of marriage is the moral foundation of the divorce damages compensation system. At the same time, the freedom of marriage is a manifestation of the people's rights, but right is inseparable from the obligation and responsibility, freedom and responsibility can not be separated. Divorce Damage Compensation System, as the legal regulation means of divorce freedom and fault liability, to a certain extent, eliminate the worries about economic disadvantage from innocent party. It not only provides appropriately the protection of the legitimate rights and interests of the injured party, but also protects the realization of freedom of divorce. Divorce Damage Compensation System is the balancer of legal regulation in divorce freely and fault liabilityRupture Americanism was the standard of divorce adjudication, not directly related to the consequences of divorce. On the contrary, precisely because of the rupture, in order to achieve social justice, the law for divorce and the relief system, often require the innocent party to bear certain adversely legal consequences. Therefore, the rupture and divorce damages compensation systems are not mutually exclusive. In fact, the value of the system lies in, on the one hand, achieving social justice, at the same time, protecting the marriage freedom, on the other hand, from the other side, the disadvantages of rupture doctrine are corrected. In fact, the view from the marriage legislation in the countries or regions, most of the standard in divorce adjudication adopts "syncretism" While some countries have adopts a single rupture, in the face of all the disadvantages from the single rupture doctrine, they have to make a fresh start, alter a composite rupture' and embark on a "middle path". The standard taking on the adjudication of divorce in China's Marriage Law is the rupture doctrine-based, as well as adopting both the composite rupture doctrine of fault doctrine and purpose doctrine, which is essentially to provide a more solid institutional basis for Divorce Damage Compensation System Construction. At the same time, since China's Marriage Law positively implements rupture doctrine, and does not provide the harshness terms, it will safeguard the realization of freedom of divorce, though. But it ignores the legitimate rights and interests enjoyed by no-fault spouse.And even encourages the spouses to divorce as a escaping means, which is suspected of obligations between husband and wife. Divorce damages compensation system is established to increase the divorce cost of innocent party, to a certain extent, can compensate for this defect.Either in the countries or regions which adopt a single rupture, or in the countries or regions of syncretism, fault has more or less legal significance in the maintenance system established. As, without completely asking responsibilities, it seems contrary to the concept of fairness, if children being taken care of by one party with no fault or one party having fault in fostering. If the party with statutory fault in one of the spouses has some difficulty in the burden of proof, advocate the abolition of the system of divorce damages compensation should not be established, nor should the divorces fostering system, because the same problem exists. We can not negate the system completely because of problems in real applications. What we need to do is to face the problem, thinking, and problem-solving rather than evade the issue. In fact, divorce damages compensation system are different from divorce maintenance system, these two different systems are not comparable. Both of them has essential difference in the aspects of legislative purpose and the right to claim. Thus, in this point, the vast majority of national or regional legislation or judicial practice, while establishing divorce Maintenance System, also establishes system of divorce damages.Chapter Three:Since in China's Marriage Law Article46,divorce damages compensation is the divorce damages rather than from damages, so the constituent elements are clearly different. Theoretically in China, the vast majority of constituent elements in damages compensation, essentially refers to the constituent elements from damages. Then what are the constituent elements of the right to claim damages compensation? Since the divorce damages compensation is the one which takes place because of damages caused by the discharge of marriage as the identity of the contract to one innocent spouse.Thus, What is the nature of the right to claim damages?what particularity is it, compared with the exercise of general damages claims? In view of this, this chapter only explores the constituents and exercise of a right to claim divorce damages compensation.The chapter argues that, since China's Marriage Law46damages under the divorce damages, then constituent elements of divorce damage compensation claims are as follows:(1) existence statutory fault do exist in one spouse, while the other party does not have legal fault;(2) legal fault in one of the spouses leads to the discharge of the marriage between the parties (ie divorce);(3) one party without legal fault suffers from the damage. Despite the difficulty in the burden of proof does exist for the innocent spouse party from a practical point of view, but it still should not adopt the principle of presumption of fault. On the premise of not changing the burden of proof rule-"who advocate rights, who provided evidence", the problem can be solved through clarifying evidence of admissibility rules from the client in the divorce proceedings, especially the non-fault party, the confirmation of the legality in legislation of private forensics from innocent party in the lawsuits against divorce damage compensation.Application of divorce damages compensation regime is not directly associated with divorce. Whatever it is conventional divorce or lawsuit one, innocent party without legal fault may exercise a right to claim divorce damages compensation.The claims of divorce property damages compensation does not have the nature of a personal exclusive property rights, especially has no properties formally. If it is inherited or transferred, its successors or receivers may exercise the right to request the divorce damages compensation; Claims of divorce non-property damage compensation is exercised on the relative specificity, divorce the non rich man 'damage compensation request for the to exercise the main body's right usually belongs to the spouse without legal fault.Of course, if one of the spouses with the statutory fault has a written commitment to offer monetary compensation, or the one of the spouses without any statutory fault has filed lawsuits to the people's court, claim rights of the divorce non-property damages compensation will become general creditor claims which is transferable and inheritable. If it is transferred to others, the assignee will be the main body of exercising the right; for it is inherited by the right by the heir, the heir will be the owner of exercising them. In addition, its creditors, if according with any elements of the establishment in the right of subrogation,can also exercise the right of subrogation as part of its exercise as the main body.In divorce proceedings, time to exercise the right of claiming damages compensation, should be different from the plaintiff or the defendant of the divorce proceedings, but the Supreme People's Court judicial interpretation of the provisions still need to be further improved.Chapter four:Since divorce damages compensation is the one which divorce itself causes no fault party damage compensation, the so-called trust interests compensation. So, what trust interests are? How to define the range of trust interests in divorce damages? According to the Supreme People's Court on the application of Interpretation about Several Issues of Marriage Law, in Article28of the Marriage Act, article46provides that "damages" includes the compensation for material damages and moral damages. The aspect of mental damages may apply to the Supreme People's Court Interpretation on the liability of certain questions about the determination of tort moral damage provisions. Additionally, what exactly the material injury is? Its scope?, There are different understandings in theory and practice. Therefore, combined the analysis of more controversial issues on divorce scope of damages, this chapter will continue the discussion..The chapter argues that divorce damages compensation is the one which divorce itself gives rise to the damages to the interests of the trust in no-fault. As for the property contract, Two Schools take prudent attitudes toward whether it is allowed to request the reliance interest compensation liability or not. But in terms of the marriage contract as a contract of identity, in the countries or regions establishing the system of divorce damages compensation, they provide for compensating the spiritual damages which was caused by divorce itself to the spouse parties without any legal fault. In vast majority of countries or regions where divorce damages compensation system is recognized, the relevant legislation has no clearly definite range on the property damage compensation that divorce itself gives rise to toward one party without any legal fault, and thus in theory and practice there is not without controversy.This paper argues that the loss of dependency looks like solid damage. In view of China's Marriage Law Article42, which concludes the provisions about the so-called" economic assistance ", the spouse with no-fault in divorce are living a difficult life, he or she could request economic help.There is no necessity to incorporating the loss of dependency into the scope of divorce damages compensation. According to the provisions of Article17of China's Marriage Law, the husband and wife jointly owned the equal right to property. In terms of the provisions of China's "Property Law", in addition to constitute the day-to-day family agent, the couple exercise the independent ownership toward their property respectively. In that case, there is no marital property damage in income expectant right. Inheritance rights (referring only to the right of succession in the objective sense), the the insurance beneficial interest is not that right, thus the so-called right to inherit,and insurance beneficial interest should not be belong to the scope of damages.Although human capital is not a property, but a combination of human capital and labor may bring wealth. That spouse was willing to accept the other's specialized professions (such as lawyers, physicians) education, or to obtain a business license industry is not only based on the commitment of marriage, but also will be based on a happy life brought by the human capital from the contribution party. However, with the change of society, in the marriage castle the phenomenon that one party of the spoused changes his mind easily gradually increases, more and more people sighed their endless sentimental issue. If one party accepting a contribution is to obtain the upcoming human capital immediately and then files divorce lawsuit, it could not only shatter the contribution party's dream, but will acquire nothing. If the law does not resort to relief, apparently it is unfair. Although the compensatory maintenance system established by the precedents of the United States can achieve the purpose of the relief to parties, but China's Marriage Law does not provide for this system, and provisions economic assistance system of this was powerless to do anything. But this should not be regretful, the provisions of divorce damages compensation system in China's Marriage Law, is the same in nature as the United States established cases which means compensatory maintenance System, but it is more in line with the gist of divorce damage compensation system to protect the future interest.Couples loyalty agreement is the contract with full civil capacity, as long as the parties to the marriage are equal, own consensus on a voluntary basis, and in the signing of the agreement, They should be have the full civil capacity. This is not the identity of the contract, but only the supplemental agreement of the marriage contract which agrees that once one party has infidelity and leads to divorce, thus one party should bear the damage compensation party liability. Marriage contract is continuing covenants, its discharge does not have a retroactive effect. Couple loyalty agreements as supplemental agreement of a marriage contract, of course, will not go extinction even due to the release of the marriage contract-retroactivity. Therefore, since in the couples loyalty Protocol, convention on the amount of divorce damages compensation may become an important basis by the Court to determine to the amount of divorce damages compensation. |
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