The Study Of The Compensation For Marital Damages

It’s beyond all doubt that there are a lot, wide varieties of harmful actions between husband and wife. The way to relieve them as provided in the current law is only the divorce compensation system. The Supreme Court, in its interpretations, clearly expresses its denial of compensation to marital damages not on the premises of divorcing. There are always disputes in theory and practice about if it is necessary to establish a compensation system for marital damages. On one hand, in judicial practice, it’s not uniform in the handling of cases concerning compensation for marital damages; on the other hand, some scholars argue that a strong sense of ethical and moral standards is concerned in marriage and family, in which law shall not get involved too much, and therefore they are opposed to compensation for marital damages on grounds that it’s not possible to execute, while other scholars, having recognized the deficiencies of the existing law, have proposed to support the establishment of such a system.The shortage and unavailability of relief channels for victims in marriage have forced many victims to seek self-reliance rather than demanding a divorce. As a result, not only the victim can’t be effectively protected, but also it’s not conducive to suppression of torts in marriage, and not conducive to family stability. In a certain sense, it leads the marriage relationship to become a legitimate cover for violations, and it’s more likely to put the family into a vicious cycle of retributive violence. For this reason, a compensation system for marital damages shall be established in the law of our country, and together with the current divorce damage compensation system, a complete compensation system for damages in marriage shall be set up.The establishment of the compensation system for marital damages does not provide a cause for avoiding such specific issues as the analysis of its legitimacy and feasibility as well as its own legal nature and definition of the scope of adjustment. This article, on the basis of comparison and investigations, and from a legal positivism point of view, puts forward the following propositions:1. Marital damages shall be defined as debt of tort. The reasons are:1) The rights of victims related to compensation for marital damages bear legal characteristics;2) Compensation for moral damages included in the compensation system for tort damages, as compared with contractual obligations, is more conducive to meeting the relief demand of the victims in a marriage;3) The marriage parties, except getting registered in accordance with provisions of the law, generally will not enter into detailed agreement on other elements of the marriage pattern; it’s difficult to correspond with the responsibility to regulate the marital damages;4) Compensation for marital damages is in line with the legal characteristics of general tort liability.2. Establishment of a compensation system for marital damages is a practical need for a fair legal value and a sollen direction of social development. It’s feasible to do it. For legitimacy, on one hand the existing law has shortages in various forms in protecting the victims in marriage, and the compensation system for marital damages can just provide reparation and relief to make up for this; on the other hand, the reality of social development has laid a social foundation for establishing the compensation system for marital damages. Then a system established for sollen problems can remove the obstacles. On the feasibility, the theory on marital tort damages provides a theoretical basis for the compensation for marital damages, so the establishment of compensation system for marital damages is not only in line with the gist of the existing law, but will more perfectly merge into the existing tort system. In addition, there are existing examples of compensation system for marital damages in the Britian and American law system and continental law system. Therefore, establishing such a system is practically feasible.3. Damage compensation in marriage mainly regulates torts of vicious or serious nature and serious in damaging consequences. The reason is:because if any normal tort, regardless of its severity, has been granted unrestricted direct judicial proceedings for relief, a large number of marital disputes or infringement would flock to the Court, which is not only against the intention of legislation to protect marriage and family stability, but the judicial resources will be overwhelmed in practice. On this issue, it’s possible to view it from the perspective of coordination between the key components of tort, the type of torts and compensation for marital damages and divorce damages. In addition, in order to increase the operability and practicability of compensation for marital damages, it’s necessary to sort out the type of tort related to the marital damages.4. For the effective implementation of compensation system for marital damages in our judicial practice, it’s proposed that our legislation shall define the two supporting systems clearly. The first is to establish an unusual property system. In the duration of marriage when there is a subject of marital damages, and if the parties do not want to divorce, but demand compensation from the other party, it’s necessary to determine to terminate the existing property relationship and then implement a separation of property regime for a emergency period, and separate the common property before making a verdict on compensation. Thus nature of the payment property and the property capacity of the infringing party involved in the dispute of compensation for marital damages can be resolved. The second is the debt obligation system, which means to carry out property protection over the outstanding debts in order to fully protect the legal interests of the party who suffers losses in the marriage and effectively prevent the infringer from escaping from debts by citing the reason for having no personal property. By doing so it can well resolve the conflict between terminating the execution of this dispute and continuing to execute the dispute, as well as the conflict between the right to claim for compensation for marital damages and the community property system between the wife and husband.