Divorce Damages System

In order to safeguard the unerring party's legitimate right and punish and take precautions against illegal activities,the system of divorce compensation has been established by the new Marriage Law in 2001. Bigamy shall be prohibited. Anyone who has a spouse shall be prohibited to cohabit with another person of the opposite sex. Family violence shall be prohibited. Maltreatment and desertion of one family member by another shall be prohibited. If one of the following circumstances leads to divorce, the unerring party shall have the right to claim compensation: bigamy is committed; one party who has a spouse cohabits with another person of the opposite sex; family violence is committed; or a family member is maltreated or abandoned.Firstly, in order to study marriage's nature the author analyses what is marriage and considers that marriage is not a contract but only a system of society. Accordingly, the author holds that divorce compensation is a tortious liability. Its function contains three aspects of comforting a mental scar, making up for a loss and preventing illegal act.Secondly, this essay introduces the systems of divorce compensation in the other counties, such as Swiss, Mexico, France, Japan and in Hongkong, Aomen and Taiwan, etc regions.Thirdly, the author makes a analysis of the constitutive theory about the system of divorce compensation. It is important to discuss the objective elements - - tortious acts which contains bigmia,illegal cohabitation, domestic violence and maltreatment or abandonment. The views about de facto marriage is complicated according to some opinions of the Supreme People's Court. In accordance with the relevant provisions stipulated in Marriage Law of the People's Republic of China, if a person indulges in family violence or maltreats a family member, the victim shall have the right to advance a request; the neighborhood committee, villagers committee or the unit where they belong to, shall persuade the person to stop doing it and conduct mediation. If a person is committing family violence, the victim shall have the right to advance a request; the neighborhood committee or the villagers committee shall persuade the person to stop doing it; the public security organ shall stop such violence. If the victim advances a request, the public security organ shall, in accordance with the legal provisions on administrative penalties for public security, impose an administrative penalty on the person who commits family violence or maltreatment of a family member. Therefore, the erring party's responsibilities for these faults are various.In addition, the author presents some personal opinions on the application of the system of divorce compensation. For example, who should be a obligee or a obligor? How to carry out a compensation for a mental scar? How to grant favor to the part without fault? What is compensation on going marriage? Why shall one part to marriage render appropriate assistance with his or her own property such as his or her residential house if the other party has difficulty in supporting himself or herself at the time of divorce?Finally, the author makes some criticisms of perfecting our country's system of divorce compensation, such as a generality clause shall be added, the system can be putted into effect to a divorce agreed upon and ways of implementing damages.The author advocates that husband and wife shall be loyal to each other and respect each other, family members shall respect the old and cherish the young, help each other, and maintain the marriage and family relationship characterized by equality, harmony and civi1ity.