By Divorce Damage Compensate System

As one of the important part in the marriage law of PRC (revised), the System of compensation damages for divorce (SCDD) filled a gap in Chinese marriage law. As a system of right supporting, it aims at protecting the legal right of the unwrongdoer. If the wrongdoer' s behavior (one of the couple) leads to the divorce, she/he has to take responsibility for compensation of the damage. The forty-six item of PRC (revised)only listed four case, Limits to the multitudinous mistakes, The packet of energy does not contain the divorce mistake compensation scope by far, This has no alternative but to say is the legislation slight defect. The author believed, The divorce damage compensate system is and causes the marital breakage result to the mistake behavior destruction marriage diplomatic relation the compensation system, his behavior, No matter is what form, So long as has violated the marriage law basic principle, Achieved certain degree causes the marital breakage, Conforms to the civil law stipulation spirit damage compensate substantive important document, Should include the divorce damage compensate, Causes the non-mistake side to obtain the more legal rescue. Author suggestion, "Marriage law " stipulates may mention the divorce damage compensate the situation to be supposed to give to expand, Manifests legal fair and the unjustness, In legal article indication, May in 46th increase one item in "Marriage law"; Other seriously violate the situation which this laws and regulations decide, If the long-term adultery, takes drugs for a long time, gambling and so on." In the judicial practice according to "Marriage law" by judge the spirit decides after deliberation freely then. The 46th stipulation may see from "Marriage law", Divorce damage compensate legislation orientation for mistake responsibility principle, In under pure suitable mistake responsibility principle situation ,To proposed the damage compensate solicitant requests it to undertake presents evidence the responsibility, In order to protect opposite party benefit, As the mistake responsibility principle special shape - - mistake estimated the principle should introduce in the marital family domain in the damage compensate system. In divorce damage compensate ,How limits the request power main body and the responsibility main body? The author thought cannot rigidly adhere "the non-mistake side" in the trial practice which limits in the law, But should defer to the marriage law the legislation spirit and the civil law principle ,Adopts the principle which the mistake balances to come the referee case. So long as a side has the compensation situation which the 46th institute stipulated ,Another one no matter only then whether there is mistake and mistake size ,All allows it to propose the compensation request, Similarly ,Also should allow another side to propose corresponding contradicting ,And investigates thoroughly the harm in the trial the fact, Discrimination mistake whether there is, size and degree ,Balances after the mistake ,Compensates by a mistake big side. In the judicial practice some people proposed "the bigamy, lives together whether the third party does become the divorce damage compensate responsibility main body?" The author believed ,When the third person on subjective has the mistake ,On objective has violates the spouse power the behavior ,And causes spouse both sides to divorce, the mistake third person of and the mistake side should undertake the association damage compensate responsibility. The divorce damage compensate essence is the spirit damage compensate ,The compensation amount determination is divorces the damage compensate the core, Regarding the compensation concrete amount in the judicial practice is a question which grasps with difficulty ,Also divorces the question which the damage compensate system urgently awaits to be solved.The paper introduced the SCDD' s historical development, international and domestic legislative situation at present. The author studies and discusses our country' s basic theories, essential factors, principles and range of damage compensation. In dealing with the present situation of the impossibility of execution of the SCDD in judicial practice, the evidential acquirement according to law in the actual operation, the ascertainment of the amount of damages and the range of the subject of damage obligation for divorce, the author clarified her views and put forward concrete proposals perfecting the SCDD, which possess important real meaning in order to understand and utilize the law well.