Construction Of Marital Tort Damages And Compensation System

Starting from the legislative vacancy in marital tort damages and compensationsystem in China, the author then do plenty of comprehensive comparison and analysisof marriage compensation system development between continental law systemcountries and common law countries. The author hold the opinion that China shouldestablish marital tort compensation system with Chinese characteristic based on localresources. With the development of society and economy, the deepening of reformand opening up, people’s thought and social life has changed a lot. The social realityneeds the progress of the legislation, so the construction of the compensation systemof marital infringement is imperative.After deep and detailed demonstration, the author come to the conclusion thatChina should establish a marital infringement compensation system, and the authoralso brings forward some suggestions to the construction of the system. This paperincludes four parts. In the first part, the author introduces the concept, characteristics,constitutive requirements, and the domestic and foreign legislation present situationof marital tort damage. The second part is the demonstration of the theoreticalfoundation and legislative significance of establishing the marital tort compensationsystem at present stage of China. The author think that the theoretical foundation ofChina’s marital tort compensation system should include the essential characteristicsof infringement within marriage, the nature of private law of marriage and familyrelations and the perfection of legal system; and the legislative significance mainlyembodies in the influence on social life and of legal life. The third part is thecomprehensive analysis of the reason of why China doesn’t have marital tortcompensation system in its current legislation, and of the barriers and causes ofconstructing China’s marital tort compensation system which include specific ideaobstacles and system obstacle. The idea obstacles are mainly due to the traditional thoughts and doctrine of conjugal integration, and system obstacles reflect in thecouple’s joint property system remarkably. To construct China’s marital tortcompensation system, people must overcome the idea obstacles and clear the systemobstacles. For the idea obstacles, the author suggests that through the propaganda andstrengthening the legal system soft environment construction, people gradually updatethe understanding of the relationship between husband and wife. The society shouldbuild the atmosphere of equality of spouses and independent personality to giveguidance for the change of people’s thought. For the system obstacles, the authorsuggests that China should learn from foreign advanced experience of the legislation,and set up the system of property rights, the very certificate system, maritalseparation system and a voluntary premarital property registration system to expandthe right to know. The fourth part puts forward concrete suggestions. First, themarriage tort compensation system model in China should be special chapters andprovisions in marriage and family legislation. The relationship between tort law andmarriage tort compensation system is common law and special law relation. In theinfringement occurred within marriage, if there are express provisions of tortcompensation system within marriage in marriage and family law, the marriage andfamily law prevails. Secondly, the author clear the exercise subject and exercise wayof the right, in which exercise subject must be the party by marital infringement of thespouses, and exercise way including self-help and public remedy. Then the authorclears the marital compensation extent, in which the marital infringementcompensation should include property damage, personal damage and spiritual damage.The amount of compensation should be determined by comprehensive considerationof the way of infringement, the damages, and the degree of the fault of the injuredparty. Fourthly, the author demonstrates that the limitation period of the compensationsystem of marital infringement during should be the short-term limitation period, anddo some value judgment and legislation proving for this legislative choice. Throughthe above arguments, the author clarify the reason of legislative vacancy in maritaltort compensation system in China, and put forward constructive opinions for clearing the obstacles of marital tort compensation system construction. Thereasonable related system design lays the foundation for the concrete construction andoperation system, and will finally provide a clear and complete train of thought formarital tort compensation system construction.