Study On The System Of Compensation For Divorce Damage In China

In China, the divorce damage compensation system which earliest appeared in the Legal Civil Bills of Qing Dynasty ,has been revised for several times with the changes of society. At present, divorce damage compensation lawsuits appear in judicial practice constantly, due to the comprehensive roles of a series of factors, such as the development and highlights of personal values, the improvement of moral tolerance, the liberalization of women and the changes of family function, etc. Therefore, it is becoming increasingly important to discuss how to protect the client's legitimate rights with legal weapons. As one of the divorce remedy systems, divorce damage compensation system is one that when a major fault concerned with one spouse leads to the breakdown of the marriage relationship, the fault party assumes the responsibility of damage compensation to the no-fault party. This system is formed on the basis of violation of spouse right, a sign for ethics legalization in marriage area. Since the divorce damage system was added to the marriage law in 2001, it has played the important roles in compensation for the victim comforting the no-fault party and punishing the fault party. Although the damage compensation after divorce is of no avail to the cracked marriage, at least the weak can avoid the survival crises. After all, survival right ranks first in human rights, so the law should protect it. When ensuring the freedom of divorce, it is the actual legal remedy and safeguard system to the weak in marriage relationship that can embody the legal justice and the humane care to the weak. It can also embody our law's human concept and spirit to aid the poor and protect the benefits of the weak, and realize the truth of divorce freedom forwards human liberalization.The purpose of this paper is to bring forward legislation suggestions to perfect China's divorce damage compensation system, based on the theoretical analysis of divorce damage compensation system and combined with legislation practice in this area at home and abroad. This paper is composed of three sections:Section 1 is about the theoretical basis of divorce damage compensation system. On the basis of clarifying the responsibilities of divorce damage compensation, this section mainly holds that divorce damage compensation system is built on the basis of violating the spouse right which is also the moral basis of ethics legalization in marriage area-divorce damage compensation system.Section 2 is about the present legislation situation of divorce damage compensation system abroad. This section analyzes and compares the similarities and the differences of divorce damage compensation system in France, America, Japan, Taiwan and Chinese mainland, trying to seek the contents helpful to our divorce damage compensation system.Section 3 is about the concrete contents of China's divorce damage compensation system. Firstly, this section describes the legislation development of divorce damage compensation system in China and the meaning to set up such a system; Secondly, the author analyze the contents about entity law in divorce damage compensation system: the conditions and the main bodies (right body and responsibility body) of divorce damage compensation; Thirdly, the author expound the contents of procedure law of divorce damage compensation system: the application range of divorce damage compensation system, the time for requiring the divorce damage compensation, the proof in the lawsuit and the certain standards of mental damage compensation amount. Finally, on the basis of the above two sections, this section gives legislation suggestions for our divorce damage compensation system.