Research On Divorce Damages System

After the promulgation of the new Marriage Law of the PRC, the divorce damages system (DDS) has become a hot subject to the lawyers and others. The DDS is not initialed in our country. As the rules are too principled coursed by the exigencies of the legislation, we have to perfect the new Marriage Law in many aspects. The article makes a brief statement about the legal basis of DDS in the nature of the marriage and gives it a definition. We also must take into account its significance and functions which lead to its beginning and development. Our lawyers always pay great attention to foreign legislation experience and outcomes. The DDS rules under Continental Law states such as France can be used for our reference. The French legislation model established complexly by theorems and specific provisions is an apothiosis. The article introduces the selected typical foreign legislation cases. We must establish a Chinese feature divorce damages system on the grounds of our culture and social background. The living standard in our country has been increased remarkably over the twenty years reform and opening. The great changes about the conception of marriage and family which make up the social background to amend the Marriage Law are the realistic demand in DDS establishment. The new Marriage Law and the newly issued are constituted our current basic legal framework on DDS. The constructive conditions of DDS are as follows: 1. Illegitimacy of conduct, where the injuried party can claim damages against four conducts prohibited by section 46 of the new Marriage Law: bigamy, cohabitation, family violence, domestic maltreatment and desertion. 2. Facts of injury, which the determination of injury is based on the results of divorce. 3. Causality, where the results of divorce is caused by the above mentioned illegal conducts. 4. Fault of the doer. The article pays special attention to adultery and the issue about third party infringement against consortium. The scope of divorce damages covered by the new Marriage Law is not extended to the conduct of adultery. As a serious violation against consortium which causes so serious injury to the society, family and the injuried party, adultery must be regulated by the law. Third party infringement against consortium also must be disciplinaried by the law. In the view of legal theory, consortium has the power against the third party. The third party is liable for his infringement against consortium. In judicial practice, third party infringement against consortium cases are popular. It is obviously unfair for us to excessively impose tort liability against fault couples but leave alone the tortious acts of third parties. It is not comformed to the rules of tortious damages of the General Principles of Civil Law of the PRC.