On The Divorce Injury Compensation System Of Our Country

Divorce injury compensation system is a new divorce remedy system established by the 2001-amended Marriage Law in our country. It focuses on the new situations and problems of the marriage and family and consults advanced legal systems of countries and districts concerned. It reflects the legal protection for the innocent party of the marriage and family relationship, makes an important breakthrough in our country's marriage legislation, and perfects the marriage and family system of our country. From then on, The Supreme People's Court promulgated Explanation for The Application of Some Issues of Marriage Law of PRC I and Explanation for The Application of Some Issues of Marriage Law of PRC II, which set out basic provisions on how to apply divorce damages. At the same time, however, we can obviously notice that the system is not sound itself. So doing further research in theory for a better understanding and a better application of the system is a very meaningful business to be resolved. The paper will be analyzed as follows:The first part introduces the concept, legislation background, features, functions and the significance of the divorce injury compensation system, among which the background, the function and the significance are the keys. Most of the countries and districts in the world have already adopted the divorce injury compensation system. It is the inner demand of the statutory obligation of the marriage and family relationship and the demand of the protection for the innocent party under the new situation that China swims with the tide to establish this system. This system, which meets the need of the trial practice, makes up the legislative deficiency, strengthens convergence with the international legislation, is a necessity for the protection for marriage and family and for the building of a harmonious society. Thus, the establishment of the divorce compensation system, which is a major breakthrough in China's marriage legal system, would be of great practical significance for the perfection of China's marriage legal system and for the conformance to the trial demands.The second part introduces the constructive conditions of the civil liability of the divorce injury compensation system. Generally, every tort shares four elements, i.e. wrongful conduct, damages, causation between them and the fault of the wrongdoer. As to the peculiarity of the marriage and family cases, the constructive conditions of the divorce injury compensation should be peculiar accordingly. These conditions are the three which Art.46 of the Marriage Law implies: 1) severe statutory wrongful conducts of one party; 2) another party's innocence; 3) divorce caused by severe wrongful conducts. We must not rigidly apply the constructive conditions of general tort and place too much emphasis on causation, for such situation would be not conducive for the protection of the innocent party by restricting the constructive conditions of the divorce injury compensation. This view will be interpreted by differentiating between the general tort and the divorce injury compensation.The third part introduces the exercise of the right of petition for the divorce injury compensation. This part mainly discusses some practical issues including the time for claiming divorce injury compensation, the counting point of the limitation of action in the divorce injury compensation, the affirmation of the compensation standards, the payment of the damages, etc. It also explicates current provisions of the law and proposes the author's point on related aspects.The fourth part introduces the defects of current divorce injury compensation. The first defect is that the statutory situations are inadequate. There are only four situations which including bigamy, cohabitation of a married person with any third party, domestic violence, and maltreatment and desertion of one family member by another. In real life, however, there are many other conducts which can cause severe harm to victims. For instance, divorces caused by incorrigible gambling, drug addiction or visiting prostitute cannot result in the exercise of the right of petition for the divorce injury compensation. At the same time, there are more and more situations of divorces resulting from extramarital affairs, adultery, bigamy or cohabitation with a third party, so enumerated provisions cannot cover all of the situations that may cause severe harm to the innocent party. The second defect is that the scope of the application is vague. There are no explicit provisions in the Marriage Law to decide whether the divorce injury compensation applies to the divorce by unilateral request in a court or to the consensual divorce in a marriage registry office, or to decide that it can apply to both. The third defect is that the compensation standards are so confusing that it is hard to comprehend them in practice. Since the law does not explicitly regulate the compensation standards, they are all subject to the discretion of the presiding judges. And those judges, whose capabilities differ significantly, usually come to different conclusions out of cases of the same kind. It is not conducive to judicial unity. The fourth defect is that the difficulty in presenting evidence is not conducive to the innocent party. According to traditional burden of proof, the one who claims her/his rights shall present evidence in court. However, thanks to the features of the cases of bigamy, cohabitation of a married person with any third party, domestic violence, and maltreatment and desertion of one family member by another, it is difficult for the victims to present relevant evidence, so, there must be legal provisions designed in favor of the innocent party.The fifth part discusses the perfection of the divorce injury compensation system. The author will produce his own proposals on the subject of the divorce injury compensation relationship, the scope of compensation, the amount of compensation, and the access to evidence collection, etc. The paper proposes that we must enlarge the situations of statutory compensation, adopt miscellaneous provision, explicate the scope of the application, and, concerning the burden of proof, properly reverse the burden to strengthen the protection of the innocent party after she/he has presented the preliminary evidence.