Divorce Damages Issues Related To Research

This essay systematically elaborates the brand-new system of divorce damage compensation that was stipulated by the 2001's amendment of the Marriage Law. It has around thirty-five thousand words and includes five parts.The first part is about the theoretical basis of divorce damage compensation. In this part, the author analyses the background of legislation , the influence of morals and law on the system of divorce damage compensation and the ethic nature of marriage and he system of divorce damage compensation respectively. Firstly, after analyzing the imperfection of the 1980's Marriage Law and some problems caused by that in realistic marriage and family, the author, starting from investigating the general practice of international civil legislation and analyzing two viewpoints about this system in the amending process of the Marriage Law, has demonstrated the necessity and realistic significance of the system of divorce damage compensation. Then, the author, basing on the basic theory of the relation of morals and law, proves that we must comprehensively use two measures of morals and law to regulate affairs of ultra-marriage love. Finally, the author discusses the ethic nature of marriage, then concludes that the system of divorce damage compensation embodies the intervene and protection of nation and law on morals of marriage and family.The second part is about analysis of relative concepts of divorce damage compensation, including the nature of marriage , matrimonial tort, "negligence" in divorce damage and difference of divorce damage and common tort, and emphasizing the entire argumentation about the structure of divorce damage. Through analyzing the two viewpoints of "contract theory"and "system theory", the author proves that divorce damage compensation conform to constitutive elements of civil tort, not breach of contract. But this tort distinguishes from common civil tort, and comparatively analyzes the difference of the both.The third part is about the legal application of the system of divorce damagecompensation. The author has pinpointed the theoretical basis of right to claim for divorce damage compensation by defining the deadline and the qualification of subject. Then the author concludes the constitutive elements of divorce damage. Finally the author detailedly explains the four types of divorce damage: " bigamy; have the spouse who cohabits with other person ; enforcement family violence; ill-treat or abandon family member. " This part embodies the great efforts of the author on the judicial practice after the amendment of the Marriage Law, and includes much analysis about the 46th clause of the new Marriage Law by comparing typical cases.The fourth part is about the range of divorce damage compensation. The author, though theoretically analyzing two viewpoints about the nature of divorce damage compensation: pure mental damage compensation or composite of mental damage compensation and physical damage compensation, affirms that divorce damage compensation includes not only mental damage compensation but also physical damage compensation, and discusses his view about how to confirm the sum of the former. In a word, the author discusses rang and legal application of the two types damage compensation.Finally, basing on much judicial practice, the author talks about the question of the third party, including his joint liability with the faulty spouse, duty to put proof, the confirmation of damage compensation sum and weather it can be extended of the rang of application of damage compensation. In this part, the author, combining many cases, brings forward his question to some existing rules, not only pinpointing the problem in judicial practice, but also posing suggests to perfect our later marriage legislation.