On The Compensation System Of Divorce Damage And Consummation In Our Country

In order to protect victims by law, the divorce damage compensation system was set up, namely, the article 46 in the marriage law. It was added to the new law in 2001. But it can not satisfy the judicial actual practice. And it's also has some defects in legislative technique. So the divorce damage compensation system is not perfect. In this essay, the author tries to systematically elaborate the system of divorce damages compensation of our country. Banding the regulations of divorce damage compensation system together, the writer points out its localization, and tables a series of legislative proposals for our divorce damage compensation.This paper is composed of three sections:The first section is about the outline of the divorce compensation system. The divorce damage compensation system introduced the concept of divorce, the responsibility constituent elements of the damage compensation system, as well as the scope of application of the system.The second section is about the defects in the Divorce Damages System. Divorce in China since 2001 has established a system of damages, in theory and in practice many of the problems encountered, or the law is too vague, or use that is not reasonable. To this end, I adopt a more research methods, drawing on the maturity of foreign legislative experience, assessment of damages in our system of divorce, the status quo, to point out the fault behavior of the narrow scope of the obligation of reparation of the main fault of the spouse is limited to the scope of compensation standard uncertainty, the main claim constraints, the difficulty of the innocent party the burden of proof in terms of defects, and affect and constrain our system of divorce damages the true spirit of play to fill the damage to soothe the injured party, the sanctions side effect causes of fault analysis, expand and improve Chinese future reform way of thinking.The third section is about the consummation of the system of divorce damages compensation .Firstly, expanding the applicable scope of the system of divorce damages compensation, Compensation claims for addition to the four cases listed in the "Marriage Law" Article 46 , in terms of increasing a proposed provisions of reveal all the details ,that is to say,"the case of other serious violations of provisions of this Law" ,including the wrongdoing spouse of encompassing all the legitimate rights and interests . Secondly, the main Obligation to make reparation should contain"the third"of subjective fault , China adjust "the third " into the code of ethics , exonerate the co-infringer's joint and several liability, making the "third party" of the violations are not legal sanctions, this is unfair obviously. Thirdly, rationally determining the standard of compensation .Although China's law provides for a number of compensation for moral damage to determine the amount of objective standard, but the actual decision is still generally low amount of compensation. recommend according to the local standard of living around the National People's Congress promulgate the amount of compensation for moral damage on the local standards. Fourthly, relaxation of restrictions on the main claim. Chinese Marriage Law, in addition to the marriage relationship between husband and wife, but also make adjustments to the derived marriage and family relationships. So, other family members of the marriage both parties should also be the main body of the claim for damages in divorce Another, the introduction of "Divorce damage". The victim only has to prove himself the standard of living decline in divorce, or suffer some damage, they may request the other party damages .Lastly, improving the provision of evidence. Reducing certification requirements should be properly applicable to the higher standard of proof of probability, reduce the burden of proof, the innocent party, so that the parties through legal means fully favorable evidence to defend their rights.