Research Of Compensation For Divorce Damage Institution

In the new period of economic development at full speed, a new idea of a harmonious society is advanced during the 4th Plenum (Plenary Session) of the 16th CPC Central Committee, hereafter, the Construction of Socialism Harmonious Society become CPC strategic mission. In the event of the society was an organism, a family was the smallest cell; in case all of the marriage and families were happy, the society would be harmonious certainly. In all ages, everyone wants to pursue the happy marriage and family, but events do not happen as one wish in the reality life. Especially entering 21 century, the traditional family ideas are challenged alone with the developing of the economy. As if domestic violence, third person involved, and mistress become commonly, the divorce rate rise year by year. These are challenging our country's marriage institution. For solving these problems, the new revision Marriage Law draws the compensation for divorce damages institution, purposing to protect the legal expedient of the no-fault party, to promoting the construction of the new socialism marriage. However, there are lots of problems during the application, as if no-fault party in divorce could be compensated seldom, which need to be improved urgently.This thesis begin with the conception of the compensation for divorce damages institution to analyze the consists and the extent of compensation for divorce damages institution by introducing international compensation for divorce damages institution, and suggest to perfect this institution aiming at the insufficient parts.There are 5 parts in all.Part I summary of compensation for divorce damages. It first mentioned the conception; promptly one was harmed in divorce, no-fault party or less claiming the indemnity from the fault party. It analyzed the legal character; promptly legality, relief, penalization and functionality, such as compensation, spirit comfort, punish, and prevent illegal action.Part II general situation of international compensation for divorce damages. It introduced several countries and areas, which the compensation for divorce damages institution is more perfect, such as France, Switzerland, Taiwan and Macao. By introducing this international institution, it analyzed their common and opinion to draw on the experience of rational parts. Part III component elements of compensation for divorce damages. The component elements of compensation for divorce damages are similar with the civil liability, including the illegal action, damages, faulty, and causality. It began with the four elements to analyze the similarities and differences.Part IV liability for divorce damages. In the civil liability, the liability for damages includes material compensation, spiritual compensation and others, equal to the divorce. It began with three parts to analyze the extent of compensation which the fault party should give another no-fault party. It claims the compensation for divorce damages should be extended from traditional single material compensation to material compensation, spiritual compensation, and other compensation. It analyzed the difficulties of compensation for divorce damages which was the compensation principle of non-property damages as well, and the reference factor. It stand for referencing the fault degree of infringer, act of tort, occasion, and the status of the aggrieved party, considering several factors, and judged by the basic principle of the compensation for damages.Part V improvement of our country's compensation for divorce damages institution. This part is an important part as well, which the writer introduced the standing order of compensation for divorce damages, Article 46 of Marriage Law rules the bigamy; cohabitation of a married person with any third party; domestic violence; and maltreatment and desertion of one family member by another. It analyzed the order's defection: the restriction of subject of right for claiming the compensation for divorce damages is over strictly; the application of compensation for divorce damages is narrow; the character of time for claiming the divorce damages is uncertain; indulging the responsible for third party; the relief measure for no-fault party to proof is deficiency in divorce damage case; the certain indemnity quota entrust judge over discretionary power; it is difficult to grasp the situation of"domestic violence"and"cohabitation of a married person with any third party"in judicial practice. According to above deficiency, it gave legislative suggestion for improving the compensation for divorce damages: clearing the liability subject; adding the statutory status of tort act, such as the tort act of fornicating and cohabiting intentionally; clearing the standard of compensation for divorce damages; improving the acquisition of the evidence and the time of claiming.