The Divorce Damage Compensation System Research

The system of compensation damages for divorce (SCDD) was established in2001. Its aim is to protect the legitimate rights of the innocent party. If the illegal action of one spouse leads to divorce, the other spouse who has got material or moral damage from the illegal deed has right to claim compensation. However, the system of compensation damages for divorce is not mature. There are some problems in judicial practice. In this paper, the author will analyze the problems and put forward concrete proposals perfecting the SCDD.The SCDD which is from the Swiss Civil Code is the system to give remedies to the spouse in a weak position. The compensation of divorce damages which based on the infringement of the spouse right is a kind of tort liability. The main function of the SCDD is to fill the loss of the injured party and soothe the spirit of the injured party, sanctions and prevention of violations.The composing factors of the SCDD include illegal behavior, damage facts, causation, subjective fault, the other side being unblamable. The application scope of the SCDD is limited to bigamy, cohabitation between a person who has a spouse but co-habitats with a third person, familial violence, maltreating or deserting any family member.The scope of compensation includes compensation for material damages and moral damages. According to the position in divorce proceedings the time of the innocent party for damages differs. The problems of the SCDD include the following aspects.(1) The amount of compensation is difficult to determine.(2) The rang of application of the SCDD is narrow.(3) The innocent party is difficult to proof.We can improve the SCDD from the following aspects. First, expand the scope of the subject of the SCDD. Other family members should have the right to demand compensation in divorce. Second, the application scope of the SCDD should be extended. Adultery, drug abuse and other acts which infringe the spouse rights should be in the application scope of the SCDD. Third, the standard of compensation for divorce damages should be clear. Fourth, improve the system of burden of proof. The burden of proof of the innocent party should be reduced.