A Study Of The Legal Application Of Damages Compensation For Divorce

Marriage Law of China has been enacted in April, 2001, the system of damagescompensation for divorce has also been in operation up to now, which has functionedso that it has realized the legislation aim to protect the legal interest of non-faultyparty of marriage and punish the faulty one, and maintained the stability of familiesand society, but its defects has also gradually appeared, which has aroused thecontends in theoretical and practical circles.Based on the basic knowledge of civil law and linked with concrete cases, thisthesis uses the legislative experiences of other countries and districts for reference,analyses our system of damages for divorce, and demonstrates its defects, such as thenarrow legal scope of damages: the law limits the parties of compensation to thespouses, and yet doesn't confer such right to other members of the family, and at thesame time, it doesn't impose liability on the third party who destroys the marriageand family, the law only enumerates four cases in which the suits for divorcedamages can be brought about: bigamy, cohabitation of the married with other person,violence in the family, maltreatment and abandonment of the member of the family.The heavy burden of proof: the burden of proof is mainly on the non-fault party, andthe privacy of such suits determines the difficulty of acquirement of evidences, so thelegal interest of the non-fault party doesn't acquire proper protection. Theunpredictable amount of damages: the law and the judicial interpretation haven'tprovided the amounts of damages, there are great gaps among the amounts ofdamages in the judicial decisions and the judicial discretion of the judges are toobroad, etc.Moreover, this thesis also discusses the disputed problems, which include asfollows, whether other family members could claim their own legal interests, whetherthe third party should be the party burdened with liability of compensation, whether itis possible to sue for metal violence and whether it is legal to collect evidences inprivacy and so on, and makes clear the author's opinions.Finally, this thesis brings out some propositions for the perfection of damagesfor divorce, whose emphases are focused on how to broaden the scope of our systemof damages for divorce, it involves broadening the scope of the parties ofcompensation and also suggests including other cases of severely harming themarriage and family. Perfecting the burden of proof in the suits for damages fordivorce, and the principle of presumption of fault should be applied properly;Determining the scope of compensation, it should include material compensation andimmaterial compensation, the former includes compensation of property and personaldamages. Determining amount of damages for divorce, it suggests that the legislativebody enact the floor level of compensation, etc.