The Comparing And Researching Of Divorce Compensation System Between China And South Korea

As one of the divorce relief systems, the Divorce Damage Compensation System stipulates that if the breakdown of a marriage is caused by the major misbehavior(s) of a spouse, the wrongdoer is liable for damages to the non-fault party. It has the functions of loss compensation, spirit conciliation, and illegal acts prevention and punishment. In the amending of Marriage Law in 2001, the Divorce Damage Compensation System was added, which was later followed by judicial interpretations giving clear definition to divorce damage indemnity. This system fully reflects the explicit requirements in marriage obligations, protects the rights and interests of the innocent party, and provides legal bases for relevant judicial practices. However, due to the complexity of marriage and family issues, and the over-generality of the divorce remedy terms in the current Marriage Law, the proper application of this system has become a difficult problem in today's judicial practices, and an important subject for the marriage law studies in China. In this regard, many scholars have written papers to express their opinions. This thesis makes a comparison of and analyses on the divorce damage compensation systems in South Korea and China, finds out the deficiencies in current Chinese legal systems, and discusses the lessons we can learn from South Korea.First of all, starting from the macro aspects of the divorce compensation systems of South Korea and China, this paper expounds the development course of the two systems, and summarizes their respective achievements. Then, the paper explains the details of the two systems, including the definitions, components, application range, agents of rights and obligations, compensation amount, and methods of bearing civil liabilities, etc. Next, through comparing the details of divorce compensations in the two countries, the thesis points out their similarities and differences in spiritual damages, the nature of damage indemnity, the defining of wrongdoings, and the agents of rights and obligations. Besides, the reasons for the formation of differences are also analyzed. Finally, it summarizes the problems existing in China's divorce damage compensation system, such as its narrower range of application and obligation agents than that of South Korea, the lack of legal ground on which to determine the amount of remedy and the form of bearing civil liabilities, and the difficulty in setting a precise amount. Based on these inadequacies, the paper holds that we should learn from South Korea, broadening the range and working out a national standard, so as to make up those legal holes.South Korea and China are two distinct nations with different traditional cultures and social and political systems. Therefore, they do not have the same course, contents, or efficiency in legal modernization drive. Since the adoption of the Civil Law in 1960, the divorce damage system has been in force in South Korea. With a history of 50 years, the legal system of Korea is now complete and practical, from which we can draw lessons to improve and perfect our own divorce damage system.