| Compensation system for divorce damages which was established in the 2001 marriage law of People's Republic of China is based on new social and family changes or situations brought out by our reformation and opening up.This system embodies lawful protection for the weaks or the unblamable in family divorces.It is a great breakthrough for amendment of Marriage Law and makes Marriage Law furtherly consummated.The the Supreme Court continuously released explanation 1 and 2 for some issues in applying compensation system for divera damagesm,thus made this system maneuverable in specific judicatory practice. However,we should know well that compensation system for divorce damage is a complicated issue and is not mature. Further theoretical studying and discussing of compensation system for divorce damages and how to comprehend and apply this system become a terribly meaningful work right now. This work needs to be earnestly resolved. This thesis will analyse from following aspects.The first part introduces the meaning of establishing compensation system for divorce damages. Many countries in the world have already set up such a system. To adapt to social development needs and international tides, China has established compensation system for divorce damages.This reflects the inherent demands of legal obligation of marriage relationship. This is also the request of protecting legal rights of the unblamable under new situations .The system effectively fetches up the vacancy caused by social moral function and criminal law in existence , responding to the request of trial practice and strengthening the connection to the international lawmaking. Thus the establishment of compensation system for divorce damages is a great breakthrough of China Marriage Law and has important realistic significance for perfecting Chian Marriage Law and protecting the weak groups. The second part introduces the composing factors and obligation manners of compensation for divorce damages. According to ordinary tortuous law, the composing factors of tortuous behavior should include offence behavior ,damage facts, behavior irregularity and consequence. Whereas marriage has its particularity, what is the composing factors of compensation for divorce damages? They are connotated in the 46th article of MarriageLaw,namely legal offence behavior, the other side being unblamable and happening of divorce.We should not apply composing factors of ordinary tortuous behavior mechanically. Otherwise this can strict composing factors of compensation for divorce damages, which is no good for protecting the unblamable .Besides, this part discusses obligation manners of compensation for divorce damages,applying account of damages,etc. On obligation manners, it should not merely localize on property responsibility but should increase solatium. On idiographic applying extension, this part considers it depends on legal situations of increasing damage compensation. This part discusses severe polt such as adultery and cohabitation with the third same sex which causes divorce.The third part introduces the exertion of request rights for compensation of damage caused by divorce. This part mainly discusses realistic matters , such as the unblamable side bringing forward the time of compensation for damage, how to calculate lawsuit time, distribution of onus probandi and lawful relief for divorce caused by adultery, homosexuality, etc. Though compensation system for divorce damage is established, citizens of our country usually don't know how to exert their own request rights of compensation for damage and how to quote in the process of lawsuit because their law qualities and consciousness is low at large. This thesis gives a particular discussion of current situation regulated by law. Besides, this part has a discussion that the unblamable how to seek lawful relief in those cases caused by adultery and cohabitation with the third same sex besides four situations of current legal compensation for damage.The fourth part discussed the consummation of the compensation system for divorce damages of our country. Our country's marriage law did not confirm the compensation system for divorce damages until 2001, and this is a new system, moreover this system was disputed very much in its establishment process. The author proposed some views from the main body, legal situation, compensation scope, standard, computational method, and the evidence collection way of the compensation system for divorce damages. In the article I think the scope of the main right part in the compensation system for divorce damages should be expanded. For the legal situation, the 46th item of the Marriage Law is too narrow, and should be opened up. For some serious circumstance, such as the situation lives together with the homogeneous third party, should be brought into the scope of the legal adjustment. Moreover,regarding the compensation scope and the standard, we may stipulate a lower limit according to the local economical level, but we should not stipulate the unified upper limit. And it should be related with the right of infringement person's concrete economic capacity. For the assignment of responsibility in presenting evidence, after the non-mistake side proposes the preliminary evidence, the responsibility inversion is supposed to suitable to present evidence to strengthen the protection for the weak community. |
PDF Full Text Request