An Empirical Study On The Cases Of Divorce Damages

The divorce damages system is a redress legal system which has already been executing in many countries and areas with continental legal system or general legal system for a long time. It is established for punishing the illegal activities of erring party and protecting the legal rights of the unerring party. In the view of legislation, it is stated in statute law in some countries, and exists in the practice cases in some other countries.In the amended Marriage Law of the People’s Republic of China which was published in April28,2001, the divorce damages system was formally raised and established for the first time. It is a big movement to adopt the compensation concept into Marriage Law of PRC, which acts an important role in protecting the legal rights of the victims in marriage. The divorce damages system becomes the legal foundation in infringement cases since it was firstly established.The divorce damages system has two important functions, one is redress for the unerring party, and the other is punishment for the erring party. It not only protects the legal rights of unerring party powerfully, but also exerts effective penalty to the erring party. To be fair and to protect the benefit of disadvantage groups are principles of Marriage Law of PRC, which now can be guaranteed by the system.However, the articles of law are not so detailed, and the system is still imperfect, which requires research in both theories and practices. Since the system was established, many different opinions of the suitability and practices are raised by legal related personnel, which become the important theory research foundation. But in the meantime the variance causes some confusion in the trial and execution. And in the practice of the system, there are still many problems:the range of the main party is too small, the suitability of the fault behavior is not enough, the standard of the compensation is too vague, the quote is too hard, and the mediation takes the place of adjudge too often. They deteriorate the performance of the system.In this paper, I study the divorce damages system in two ways. Firstly, I investigate the marriage legal cases of a law firm in Shanghai, and analyze the causes and basic characteristics of the current divorce cases. I put my emphasis on the features of the divorce damages system and the problems exist in practices. Secondly, through the description of primary theories-the structure, background, function and the value of the law-I study the key issues of the legislation of the system. After the analysis of the law cases and the study of the theories, I summarize the defect of the divorce damages system, and the main dispute of legal practices.Finally I raised my improvement suggestions of procedure and practice of the divorce damages system, including the subject of right, the subject of duty, the range of compensation, the responsibility of quote, the standard of compensation, the mode of mediation. I hope this paper can be regarded as a reference document for the amending and explanation of the law, and it provides the legal related personnel with some consultative suggestions.