An Analysis On The Compensative System For Damage Of Divorce In China

Wedlock is an important component of the social relationships. Marriage Law is an essential Law that involves the individual interest and modulates the marriage relationship. While the Compensation System for Damage of Divorce is an important rule incurrent Marriage Law. The newly-established Compensation System for Damage of Divorce has been operated as yet since issued the amendment for Marriage Law in April 2001. The basic function of that system refers to that when the two parties get divorced, the victim party who suffered due to the transgressing of the other party can claim the application for compensation, so that the interest of the victim can be protected. As we all know, the social condition has been changing all the time as the development of China and the opening-up. The economic development, industrialization, urbanization, and he improvement of productivity has been promoted profoundly. This adds more opportunities for environment alterations for people. Therefore the conception, desire and pursuit of people have been changed constantly. In the recent years, as the divorce rate increase year by year, the reasons for it vary, including gambling of one party, abandon, disharmony of sex, or boredom with each other, etc. some people try to seek concubine, sweetheart, and lover after they become rich, which harms the normal marriage and family awfully. Usually one of the parties in marriage has to bare tremendous affliction after divorce which was caused by the serious offence of the other party. Thus the compensation of divorce becomes a prominent problem. The amendment of Marriage Law has added the compensation system which is essential and timely. It preserves the marriage and stabilizes society. However, the defects of the system have been gradually exposed, which aroused an argument among theorists and practists.The thesis combines the basic knowledge of Civil Law and specific law cases, using the legislation experiences of other countries and districts for references, to analyze and expatiates the significance and content of this compensation system for divorce. It analyzes the concepts of divorce compensation and its legal feature and nature as well. The present system prescribes that the rights for claiming compensation belongs to the unblamable party; while the party in fault will bare the obligation of compensation. At the same time it prescribes the prosecution approach and effective period of time: the compensation must be put forward with the accusation of divorce simultaneously. In addition, the onefold imputation principle has been prescribed. But the deficiency of this system has unveiled gradually. The thesis emphasizes on the deficiency of this system, for example, the scope of the main party of the rights and obligation is too small. The other family members are excluded to claim rights. There is no responsibility for the third party who broke in the marriage. And the compensation scope is too small, i.e. there only four situations that can claim compensation: bigamy, cohabiting with others illegally, family violence, abandoning family member. Nonetheless the other conditions which are severely harmed for the marriage family are not included. Furthermore the evidence offering is too difficult because of the concealment of this kind of case. This will cause a difficult to protect the legal rights of the unblamable party. Then the compensation amount is not clearly prescribed either in the law or in the judicatory explanation. Consequently the compensation amounts have a sharp disparity due to the different scales of the judges and their free variation. That always led to the dissatisfactory of the client towards judges.There are also some arguments on the disputes appearing in practice in the thesis, for instance, whether the other members can claim their legal rights in the damage compensation of divorce; whether the third party can be the obligation body for compensation; and whether adultery and psycho-violence can be included in the damages, etc. the author has expounded his points of view. The author suggests that the family member who is suffered from the family violence, maltreatment, and abandon can claim his/her own rights in the divorce accusation. Secondly, the third party should bare a considerable responsibility in the compensation. Lastly adultery psycho-violence should be included in the scope.The thesis also puts forward some polishing ideas about the system of compensation damage in divorce. It is believed the application range should be enlarged properly, as well as the main body of obligation and right. Some seriously damaging situation to marriage can be contained into the compensation range. Moreover the evidence offering should be improved by exerting the fault presumption appropriately. The compensation range for both material damage and psychological injury should be definitude: the material damage should include property damage and physical injury in which the compensational amount and fluctuation should be defined according to the aggrieving approaches. If the physical injuries are caused by violence, maltreatment or abandon, the supposed maximum compensate amount can be 50,000 Yuan and for 10 to 20 years referring to the relevant prescription and the average salary of pre-year in that district, combining the consideration of the injury or death. The injury caused by adultery or cohabitation is mainly psychological. It should be compensated in accordance to the varied psychological hurts. There are four classes advised: the first is common hurt compensated between 500 and 5,000 Yuan (the amount can be increased in some developed area; the second is for relatively severe hurt which is between 5,000 and 10,000 Yuan; and the third for serious hurt should be 10,000 to 50,000 Yuan; While over 50,000 Yuan can be compensated for the particularly serious situation.