The Divorce Damage Compensation System Research

With the rising of the knowledge economy, the role of human capital in socialproduction has gradually outstripped physical capital and become the vital interests thatinfluenced people’s production and communication behavior. It is very much worthincorporating into all kinds of legal norms, especially in the sector of marriage. Because ofbisexual differences in physics and the needs of social production, there’s a widespreadphenomenon in marriage life that is the division of labor in market and housework. Withthe accumulating over a long period, the couple’s human capitals are bound to have profitor loss changes, which can led to the difference of life after divorce and the poverty of theparty who has long engaged in housework. For this issue, on the investigation of thelegislation of the countries like France, Germany, United Kingdom, the United States andetc, divorce relief system such as “monetary payment”“compensatory payment” and“divorce spousal support” are found to be established in many of them. But due to the lackof knowledge of human capital, there hasn’t been a unified, rigorous theoretical basis tosupport the institution. Hence, by comparison, I believe that the current understanding anddescription of "spousal support after divorce" should be amended by building a separate"divorce loss compensation system" to provide proper and reasonable relief to the divorceparty who had market human capital loss in marriage life.There are three parts: introduction, body and conclusion in this thesis, of which thebody is divided into four chapters.The introduction states the institution of marriage, especially the importance of thedivorce system. It proposes the issue of unbalanced rights and interests which caused bydiversity of household labor division and imperfections of divorce relief system. Thisissue raises the original intention of this thesis, that is, by analyzing the marriage subjects’profit or loss changes in human capital to establish a gains and losses equitable relief, tomaximize the benefits for the divorce parties on an equitable basis. In addition, there’salso a brief introduction to the use of research approach in the writing process of thearticle. The first chapter is the investigation of the loss in marriage. This chapter begins withthe inspection and definition of loss’s meaning and using in legal norms, reaches aconclusion that human capital is an object of loss, and then analyze the concept of humancapital, its legal nature and the particularity of being an object of loss. Appling humancapital theory to the marital relationship, and found the couple’s human capital situationboth have profit or loss changes in the duration of the marriage because of the householdlabor division and family migration, Which led to the difference of life after divorce andpoverty of the one who has long engaged in housework. It’s a practical problem in divorcecases.Chapter two is the review of national relief programs. With the impetus of theproblem, the paper investigates the legislative examples of the civil law system and thecommon law system, summarizes the similarities and disputes, and found all the reliefsystem for life difficulties and differences of living after divorce are include “thecompensation of human capital “and" moral relief ", and then conclude that the humancapital in marriage should be more concerned about and the current understanding of the"spousal support after divorce" should be amended. The idea of building a separate"divorce loss compensation system" is put forward to solve the problem.The third chapter is the discussion of the legal principle logic of divorce losscompensation system. The idea of divorce loss compensation system is in line with thelegal logic of compensation for loss of trust and interests after the indenture’s rescission,and in accordance with the Coase Theorem of the Economics of Law, the theory ofproprietary investment protection and cost-benefit theory, and law’s pursuit of justice andefficiency, that expound and prove the legitimacy of the divorce loss compensation ideafrom multiple angles.The fourth chapter is the debates of main principles of the divorce loss compensationsystem and the reconcilement to the related systems of our country. Based on theforegoing legal principle logic, firstly, it discusses the constitutive requirements, thereasons for counterplea and the way and amount of compensation of the divorce losscompensation system, and then to reconcile with the related institutions of Chinese system,which led to the conclusion that this compensation system can be independently coordinated with the divorce financial compensation, divorce damage compensation andproperty liquidation at the time divorce. Meanwhile, the cases of application of divorcefinancial assistance should also be amended for the party who has difficulties in life afterdivorce by building salvage-compensate dual relief mechanism, which proposes a roughscheme to implement the idea.The last section gives a brief summary of the conclusion and significance, as well asinnovation and shortcomings of this thesis writing.