The Study Of Divorce Damage Compensation System

The eventual establishment of compensation system of divorce damage in Chinese Marriage Law marked the great development in legislative rights. The system enriches the content of the property system in one couple. It provides legal protection for no-fault divorce party in divorce lawsuit. It still plays an active role in maintaining the steady family and safeguarding lawful rights and interests of marriage parties. However, from the legislative view, the system still exist some defaults such as unduly rigid and loose which did not have a specific rule for many concrete questions. Therefore, it is needed for us to explore further correlative law issues of this system on the foundation of using for reference foreign legislative experience and judicial practice. This text firstly expounds the notion, feature, function and meaning. Secondly, it analyses Chinese compensation system of divorce damage in detail. Lastly, the text stresses on the analysis of the legislative defaults in Chinese compensation system of divorce damage and provides concrete solution for making up for these defaults.The whole passage consists of three parts. The first chapter expiates on some fundamental questions in compensation system of divorce damage. Firstly, it introduces the notion and meaning. The passage clarifies that compensation system of divorce damage means that the blameless part is entitled to require the offensive parts indemnity damages because one of conjoint has one of offensive behaviors infringed mate rights, wrought the loss of corporeal property and spiritual anguish to the other side, resulting in the breach of marital relationship and divorce. Its functions are to chasten the offensive mate, compensation economy and conciliate spirit to victim mate and guard the masses. Secondly, the text makes a comparative study about relevance legislative of the system to the country all over the world and Chinese Taiwan district. It stresses on comparing the regulation of the system in the civil law of Switzerland, Japan, France and Chinese Taiwan district. In the last part, it introduces the history and actualities of Chinese compensation system of divorce damage.The second chapter analyses Chinese compensation system of divorce damage. Firstly, it analyses its legal gender. In academic circles still exists an issue whether the legal gender is infringing right or breaking a contract responsibility. Through comparing the establishment,content,dissolution of marital relationship and contract relationship, the form of compensation of divorce damage responsibility and the break of contract responsibility, and some concrete regulations of Chinese Marriage Law to compensation system of divorce damage, to expound that marital relationship is not contract or equal to contract , compensation of divorce damage is infringing right. Secondly, it analyses the scope of compensation responsibility of divorce damage regulated in Chinese Marriage Law, that is bigamy, cohabit between the married , and other executing domestic violent, maltreating and deserting family group, only these four illegal behaviors can raise compensation of divorce damage. Thirdly, this part elucidates since compensation of divorce damage responsibility is infringing right, so it should conform to infringe right responsibility that has offence,injure truth,causality and subjective fault these four constitutional important documents. The fourth level analyses the subject of duty and obligation of the right of claim of Chinese divorce indemnity. It indicates, according to Chinese Marriage Law only blameless spouse holds the right of claim of divorce indemnity. However, blame spouse undertakes the responsibility of damage and compensation. Therefore, it lays a foundation of legislative deficiency of Chinese compensation system of divorce damage. Lastly, the part analyses the unique character of this system in detail.The third chapter is the key of the text. Based on the system analysis of the second chapter the author indicates the legislative deficiency of Chinese compensation system of divorce damage and provides some assumptions of compensating and consummate the system. It involves three aspects, concretely: firstly, the scope of Chinese compensation system of divorce damage is too narrow, only regulated bigamy, cohabit between the married and other, executing domestic violence, maltreating and deserting family group, these four illegal conditions can raise compensation of divorce damage. The author believes that Marriage Law adopts legislative mode of list, though it is definite and concrete, it is short of generalization. It can not illustrate all the relevant behaviors that conform to the compensation principle of divorce damage, devoid of pocket clause regulation to"other situations". According to this we should add"other great faults lead to divorce"to the upper four legal situations, and endow the judge certain free adjudicated right, that is, according to fault situation and injure result the judge can decide what concrete behaviors constitute great faults. At the same time the author also attempts to discuss cohabit with"gay"whether can be listed as the blame part of divorce. Secondly, Chinese Marriage Law did not regulate definitely about the subject of duty and obligation of the right of claim of divorce indemnity. It is regulated that"blameless part"is the subject of duty of divorce damage indemnity, while Marriage Law did not regulate concretely what is"blamelessness", which leads to ambiguous notion, and difficult to master in judicial practice. Therefore, the author agrees to change the claim from"blameless part"to"victim", suggests wide the scope of the subject of the right of claim of divorce damage indemnity. Furthermore, Chinese Marriage Law only regulates that no-fault divorce spouses is the subject of affording divorce damage indemnity, excluding"the third person"who meddles in other's marriage and leads to collapse of the family. Listing some famous cases about"the third person"affording the responsibility of damage indemnity in Japan and America, the author thinks that"the third person"who destroys marital family should not remedy according to moral, while he or she should be listed as common infringing right person to afford legal responsibility for victim. Thirdly, Chinese Marriage Law did not regulate the amends amount of divorce spirit indemnity, and devoid of standard. Compensation of divorce damage includes substance indemnity and spirit indemnity. Different from that in substance indemnity the compensation of infringing right principle"how much damage, how much compensation"spirit indemnity is a kind of invisible damage, short of visual gender. It can not measure in nature, while there is not any regulation about this in Marriage Law, which leads to the uncertain cognizance of amends amount in judicial practice. There is a great disparity between one case and other, even the same case in the first trial and the second trial has a great difference in amend amounts. In the text the author analyses the negative influence of legal blank, at the same time also negates the claim that unites the spirit indemnity amend amounts to rule"the lowest level"or"the starting price"or"the minimum quota and maximum quota". The author raises the factors that should be considered in deciding amends amount, suggests making a consultative basis, endowing the judge certain free adjudicated right, judge a reasonable amount according to different area and different lawsuit subject.It is embarking on a long road with formidable tasks lying ahead to perfect Chinese compensation system of divorce damage. The text is only simple analysis and discussion. The author hopes the text can have some help to legislation and judicial practice, make the system consummate gradually, and exert the functions of consoling victim, punishing the blame part, and alarm the masses. It also provides defense for the happy marriage, and provides relief for victim in divorce.