| Marriage and the family is the most extensive and widespread social relation in the human society. It is a particular social relation arising from the certain stage of development of human society which is characterized by sexes combination and blood ties and live together for content. It has natural and social attribute. Today's society, by the multicultural blend of global political, economy, religious beliefs, customs and ethics, etc. and the diversification of lifestyles and conception of the people, the problems of marriage and the family are complex increasingly. In China, with of the wealth of materials and improvement of cultural living standard, not all members of the society have higher spiritual pursuit. The traditional Confucianism"benevolence","li"and"justice"is faded from part members of society which is substituted of utilitarianism, money worship and hedonism. Feudal patriarchal domination,"man is superior to woman"and"supremacy of the husband"of the remnants of the old concept of marriage and the family still exist. The structure of transition period socialism law is not perfect yet, the concept of supremacy of law hasn't rooted in public consciousness which is reflected in the area of marriage and the family that the illegal and even criminal phenomenon of adultery, cohabitation, bigamy, arranged the sale of marriage, domestic violence, abuse and abandonment of family members is repeated. All the actions above mentioned break the law of the state, violate the legal rights of marriage and family members and undermine our system of harmony and stability of marriage and family.On April 28, 2001, Marriage Law of the People's Republic of China (amendment) was passed and issued to implement on the twenty-first meeting of the Ninth National People's Congress Standing Committee. One of innovation on the revised Marriage Law of 1980 is"strengthen legal sanctions to act against duty", the additional damages system of divorce is a new legal system of marriage and the family made in order to effectively contain illegal actions of marriage and the family and realize right relief by our law, which fill up the gap of previous law and reflect that our law is advance with the times and pursuit impartial and justicial law values. It is necessary complement of our human rights protection system.Divorce damages system is controversial while it is applicable to date, in reduce to that the statutory scope for divorce damages system is too narrow, it can't fully reflect the original legislative intention of the system, while divorce, the difficult of burden of proof for the no-fault party, low success rates of claims and the afraid of difficulties in case of physical and mental fatigued making the functions of punishment and compensation of the system existing in name only, the law on divorce damages in spirit damage is not enough detailed and objective, the judge lack of uniform standard for payment.Through analysis to current operation status of divorce damages system, this article uses the way of thinking of"what it is, why, how it will develop", from the beginning of history of divorce damages system, combines with the current situation, launches a comprehensive exposition to concept, character and constitutive elements, etc. of divorce damages system, to sort out the relevant provisions of China's current system, increases the connotation and extension of the system's cognition, by analyzing the same or similar foreign legislation cases, explores the prime for us to use for reference, tries to seek the possible way to improve our divorce damages system.This article has four part excluding introduction and conclusion:First part: Questions. By analyzing current implementation status of divorce damages system, Launching an exposition to concept, historical evolution, character, constitutive elements and basic principle of divorce damages system.Second part: Inspecting and commenting on legislation of foreign divorce damages system, striving to summarize the advantages for our legislation for reference.Third part: pointing out the focus of which is worth exploring.Forth part: Analyzing the weak of our current marital rights protection system and deficiency of divorce damages system, making pointed references to relevant complete conceit. |
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