On Legal Perfection Of Spiritual Damage Compensation In Divorce Lawsuit

Clause 46 of"The Marriage Law of the People's Republic of China", which came into force since April 28, 2001, stipulates the compensation system for divorcement damages."The Interpretation on Several Matters in Application of Marriage Law of the People's Republic of China"published by the Supreme People's Court formally clarifies that the compensation for divorcement damages shall include compensation for both material and mental damage. Both of above are the significant achievements during reform of divorcement legislation.First, the author addresses the concept and significance of compensations for divorcement mental damage. Compensations for divorcement mental damage refers to the civil liability on the mental damage and hurt that the spouse in fault should bear to the innocent counterparty, when one of the spouse is in offense against the other one's legitimate rights and interests, leading to the breakdown of a marriage. Compensations for divorcement mental damage is necessary for strengthening the socialist legal system, for establishing a harmonious society, for protecting the innocent spouse's legitimate rights and interests, and for punishing of the spouse in fault. Compensations for divorcement mental damage shall include four statutory elements, i.e. illegal acts, damage fact, subjective fault and causality relationship.The punishment modes include property compensations or non-property compensations.Secondly, the author expatiates statutory factors and discretionary factors for determining the amount of compensations for divorcement mental damage and points out that it is fair and reasonable to deem the factors as liability, damage consequence and economic factors as the statutory factors and deem those like marriage span, contributions to family, social class, attitude of inflicting spouse as discretionary factors.Finally, the author intends to give a preliminary conclusion to several issues regarding compensations for divorcement mental damage, and tries to bring forward some legislative suggestions. By comparing the definition of obligee and obligor, the author reckons that the obligee of the compensations shall be broadened to the victims, while a third party shall take the related liabilities when he is in fault.The author addresses the timing of exercising the request right of compensations for divorcement mental damage. Additionally, the transfer and inheritance of the request right of compensations for divorcement mental damage is also discussed.The author then discusses whether the evidence principle of "no fault principle" and "who advocate who proof" and the principle of distinctive fault and liabilities count-deduction are applicable to cases regarding the divorcement mental damage compensations. In the author's opinion, the special cases shall apply the different principle, for instance that, it is reasonable to apply the principle of fault reasoning when the innocent spouse fails to give appropriate evidence. Regarding to other significant faults which may lead to divorce, the Chinese legislation adopts both the enumerative regulation and generalized regulation, which ensures the stability and long term of the legislation.