Some Problems In The Application Of The Divorce Compensation Damage Principle In The Judicial Practice

The 46th article of the revised Marriage Law of China established the Principle of the Divorce Compensation Damage. It made great sense to protect the innocent party of the marriage and the stability of the family. But the principle has not achieved the desired results in the judicial practice after the application for more than two years. The author of this thesis wants to do some research about the problems in the application of this principle and accordingly be of some assistance to the improvement of Chinese Marriage Law.The thesis has five parts.Part 1. Introduction of the Divorce Compensation Damage Principle. It emphasises the value and problems in the application of the principle respectively and analysises the reasons as well. Part 2. The ascertainment of the facts of Family Violence. The thesis points out that there are many difficulties in the ascertainment of the facts of Family Violence under the current judicial interpretation. So the thesis draws a conclusion that people should understand the correct meaning of the consequential damage, the mental injury of the family violence and the relationship between the family violence and the crime of malicious injury.Part 3. The evidence of the Divorce Compensation Damage Principle. In view of the difficulties in producing evidence during the application of the principle, the thesis wants to confirm the high probability of evidence in the judicial practice. In addition, the thesis also discusses the legality of getting evidence through unauthorized recording and photographing. It is uphold in the thesis that under some special circumstances the litigant parties have the right to ask the court to collect the evidence.Part 4. The ascertainment of the damage and the compensation amount. The thesis discusses the methods to ascertain the material injury and mental injury, expounds all the factors of determining the compensation amount and clarifies the difference between the divorce damage compensation and the communal estate.Part 5. The holders of the rights and responsibilities in divorce damage compensation. In order to reach the unified understanding about some judicial problems, the thesis discusses some issues occurring in judicial practice including the ascertainment of innocent party, whether the third man should be the holder of responsibilities and whether the scope of divorce compensation damage can be expanded.