On The System Of Divorce Compensation For Damage In This Country

Marriage is a certain life style which human society select while advancing from barbarity to civilization, its basis is relationship of couples, which not only holds a core position, but also is the source of consanguinity and in-laws. In the course of history development of human society, couple relationship has been reflecting essential contradiction of the society and benefit conflict of each social hierarchy all along, also experienced the evolvement from authority over the household to mate authority in history of legal system and institutions, finally, equality and fairness pursued by human society are embodied between mates. However, behaviors infringing on mate authority often occur in social life in reality, for example: behavior such as bigamy, adultery etc, grows in number day by day; social phenomenon is proliferated such as family violence, mistress-raising etc., resulting in gradually increasing of marriage fracture phenomenon, causing serious economic losses of faultless mates, creating tremendous spiritual hurt and pain. System of divorce compensation for damage, as a certain right relieving system, offers essential protection and compensation to victims by relieving rights of the faultless side in marriage relationship. In marriage relationship, faulty behavior of one side leads to fracture of marriage relationship and divorce, causing material and moral damage of the faultless side in marriage, especially more serious spiritual damage and inestimable damage. Therefore, the right of compensation for damage is necessarily bestowed to the faultless side by law. System of divorce compensation for damage reflects logos of fairness and justice legally-possessed in law of recent marriage family, which, to the most extent, protects the legitimate interest of the weaker side in marriage relationship, and favorably defends equal status of couples, harmony of families and stability of society.Marriage Law of the People's Republic of China (abbreviated as Marriage Law in 2001 in the following), which was revised, announced and implemented on April 28, 2001, established system of divorce compensation for damage in our country in chapter relieving measurement and legal obligation. System of divorce damage is a light spot in amending Marriage Law this time, which entitles the party with legal ground to definitely seek relief.In order to accurately put this legal rule into practice, circle of law, circle of judicial practice in our country air their own views, rewrite and probe into problems such as law application of divorce compensation for damage, from which opinions differ. Because of different levels of theory recognition, results of judgment are different in every place, which not only goes against protecting legitimate interest of the party, but also damages solemnity of law seriously, for this reason, related department of legislation and justice in our country shall make clear provision on this problem, guide judicial practice activities, and defend unity of rule by law of socialism.Because the legislative provision of system of divorce compensation for damage in our country is over-general and hard to operate, activities of judicial trial are in confusion, damaging legitimate interest of the party seriously and also creditworthiness of law.The author probes into this problem in 4 parts:The first part probes into basic theory of system of divorce compensation for damage. In this part, the author, to start with theoretical and legal grounds of system of divorce compensation for damage, summarizes meaning of system of divorce compensation for damage, simply expounds social functions of system of divorce compensation for damage, and stressfully analyzes and probes into the social and legal significance of establishing system of divorce compensation for damage in our country based on combining with our country's basic condition.The second part refers to important composed documents of civil liability of system of divorce compensation for damage. In this part, the author expounds meaning of damage, concept and characteristic of compensation for damage in detail, summarizes legal nature of divorce compensation for damage, and concludes that divorce compensation for damage in our country is a kind of right-violation responsibility, this compensation for damage should correspond with important composed documents of common right-violation responsibility, which, or rather, needs legal injuria, existence of damage fact, causality between legal injuria and damage result and subjective fault of behavior-doer. In addition, according to the 46th clause of Marriage Law in 2001 in our country, a provision discourses the specific expression of 4 kinds of legal injuria in system of divorce compensation for damage: bigamy, the married cohabiting with others, implementing family violence, mistreating and abandoning family members, and makes clear problems which should be attended in applying system of divorce compensation for damage by simple comparison with other divorce relieving system formulated by Marriage Law and related judicial explanation.In the third part, the author, through reference and study on legislative provision and related prejudication of system of divorce compensation for damage in developed western countries and Hong Kong District, Macao District and Taiwan District in our country, believes, by contrastive analysis, that application sphere of system of divorce compensation for damage and sphere of responsibility subject are over-narrow in our country, and it is necessary to request the third party apart from marriage relationship to take relevant right-violation responsibility, so that system of divorce compensation for damage in our country can truly bring its effect into play in protecting legitimate interest of the faultless side in marriage, punishing the faulty side, perfecting rule by law construction of socialism and maintaining social justice etc..By comparison, the author makes brief conclusion on deficiency of system of divorce compensation for damage in our country in aspects of subject, object, application sphere, compensation standard and lawsuit proof etc in the forth part, and puts forward some suggestions on how to perfect system of divorce compensation for damage in our country; with regard to subjective problem of divorce compensation for damage, the author thinks the limit that divorce compensation for damage requests right subject of faultless should be canceled, the faultless side should be renamed as victim in legal formulation, subject of requesting divorce compensation for damage should be appropriately enlarged instead of being limited to couples; with regard to obligation subject of divorce compensation for damage, the author thinks that, if the behavior that the third person and the faulty side mutually violate a marriage family causes damage, the victim has the right to request the third side, as the obligation subject, and the faulty side to take mutual responsibility for violating compensation for damage; with regard to legal circumstance of divorce compensation for damage, the author thinks that clause of revealing all the details should be added so as to make up for a deficiency of enumeration; in connection with sphere, standard and calculating measures of divorce compensation for damage requested by the victim, the author advises to consider type of cases based on the economic standard of where the right-violation behavior happens and confirm it in combination with economic ability of the faulty side and the third person; ultimately, as for species and acquiring way of lawsuit proof of divorce, the author puts up with some suggestions, for instance, what kind of proof, through what channel or in what way to acquire, can be taken as legal proof should be exactly formulated in law, when the injured married side is incapable of getting favorable proof for himself/herself, as long as the victim offers preliminary proof to prove existence of damage fact, principle of proof inversion is applicable, and the faulty side is requested to take proving responsibility for his/her inexistent fault. Furthermore, the provision should be added that the street, neighborhood committees, village committees, department of property management of sub district should take related proving obligation and should be staked a claim to actively coordinate with judicial authority to further settle problem of difficult proving.