Problem And Solution:Study On Evidence Regulation In The Procedure Of Compensation For Divorce Damage

The system of compensation for divorce damage, established by Marriage Law of the People’s Republic which is amended in2001, is a relief system of divorce and fills in the blank of law history in China. It can punish the party at fault and protect the innocent party in marriage. The difficulty of giving proof of evidence for the innocent party is a troublesome problem in the cases of compensation for divorce damage. In judicial practice, due to many reasons including evidence disappear, lack of witnesses, and difficulty to obtain evidence, the innocent party can not provide enough evidence of fault behaviors relative to the party at fault and have to lose a lawsuit, which weakens expected effect of the system of compensation for divorce damage and can not efficiently fulfill purpose of legislation. The difficulty of giving proof of evidence in the lawsuit of compensation for divorce damage has been selected as the subject of this thesis. Research on the problem is of realistic significance and theoretical value.To solve the difficulty of giving proof of evidence for the innocent party, the first part in this thesis analyzes system predicament for the problem and finds the root of the problem, including absence of legal support for collecting evidence, too higher standard of proof, and unreasonable distribution of proof burden. The second part suggests enhancing legal support for collecting evidence from the following aspects such as conditional recognition of legality for private collection, broadening the way of collecting evidence, and adopting investigation system. Based on the theory of apparent proof, constructive proof, and the balance of interests, the third part proposes to lower standard of proof for the innocent party. The inversion of proof burden as well as its applicable restrictions and applicable conditions are advised in fourth part.The specific countermeasures to solve the problem proposed in the thesis are of prime significance for making perfect the system of compensation for divorce damage. Their application would be helpful to handle with the problem, protect the innocent party, preserve legal interests for each party in marriage, and ensure the system of compensation for divorce damage to obtain its desired effect and implement its legislative original intention.