Deficiency Arid Improvement Of Divorce Damage Compensation System In China

Marriage and family relationship in human society is the most widely, the mostcommon social relations, the social attributes of its own, making it vulnerable toexternal influence, coupled with the current social cultural exchanges between Chinaand Western countries, various life style and ideological trend of the marriage andfamily problems in relationships is also changing, complex. With the rich material life,cultural life level, spiritual civilization construction has gradually backward. On thecriticism of traditional moral values not only can promote the construction of spiritualcivilization, but the fine tradition of loyalty and filial piety Renyilizhi letter dismissed,"utilitarianism","money worship","hedonism" popular. In our country, due tohistorical and social reasons, the construction of legal system is not perfect, the law,the supremacy of law is not into the public consciousness, but also for marriage andfamily problems considered privacy, so that all in the range of marriage and family inillegal behavior it is often seen., such as bigamy, cohabitation, adultery, arrangedmarriage, domestic violence, abuse and so on, abandoned, and part of the victim doesnot know how to protect their legitimate rights and interests in dirty linen, notpublicity for help the innocent party to be concealed, not only in violation of therelevant law, infringement of the lawful rights of the innocent party, had an impact onChina’s existing marriage and family system, is not conducive to social stability andharmony.In April28,2001the "PRC marriage law"(Amendment) implementationadopted and promulgated in the ninth session of the National People’s CongressStanding Committee of the twenty-first meeting, the innovation of the revised"marriage law" after1980, is "to strengthen the legal sanctions" violation of dutybehavior,"added the divorce damage compensation system" is in order to effectivelycurb the illegal acts occurred in marriage and family, the new marriage and familylaw system to achieve the right to relief and development, legal gaps to fill before, isa necessary complement to China’s human rights protection system. The marriage law of the people’s Republic of China to explain the August13,2011implementation of the "(three)", the supplementary provisions to the divorcedamage compensation. It is for the protection of the rights and interests of the partiesand the construction of harmonious society to play a more active role.Application of the system of compensation for divorce damage so far,controversial, in summary, the scope of legal cases in the application embodies thecompensation of divorce damage is too narrow, the system fails to fully reflect theintention of the legislation, no fault divorce difficult burden of proof, the low successrate of the claim, and have the fear of emotions in the exhausted condition, make thesystem of punishment "," compensation function exists in name only, the divorcedamage compensation for mental damage compensation stipulated in the law are notobjective enough refinement, the judge discretion compensation problems lack ofunified standard and so on.In this paper, through the analysis on the operation status of the compensationsystem of divorce damage, the use of "what is it? Why is this? How will it develop?"This way of thinking, from the beginning, traces back the historical origins of thedivorce damage compensation system combined with the status, basic meaning,ethical basis, properties, characteristics, components and other issues on the system ofcompensation for divorce damage overall exposition. The relevant provisions in orderto review our current system, and the extension of the connotation of the systemincreases the cognitive, and through the analysis of Chinese and foreign the same orsimilar legislation, from which to explore for our reference essence, seeking toimprove the divorce damage compensation system was feasible.This paper is divided into four parts:The first part: the basic theory of the system of compensation for divorcedamage to building. Analysis of the concept and historical evolution of the system ofcompensation for divorce damage; about the nature of divorce damage compensation,the author thinks that, only the breach liability and tort liability of both, is the realembodiment of divorce damage compensation liability attribution. It also discussesthe ethical foundation of the system of compensation for divorce damage that moral, freedom of marriage is the moral foundation of the system of compensation fordivorce damage; the equality between men and women is the system of compensationfor divorce damage moral values; honesty is husband and wife divorce damages thesystem ethics; justice is a kind of legal value, also is the human eternal pursuit of themorality. At the same time, the establishment of the system of compensation fordivorce damage function can not be ignored, which is a major reason for divorcedamages institution can produce, development. Finally, the problems of the divorcedamage compensation system application.The second part: mainly introduces the legislation of the system of compensationfor divorce damage. First a brief introduction of France, Japan, Switzerland, theUnited States of America, Germany and Britain on the content of the legislation ofdivorce damage compensation, comparison and analysis are made on the legislationcontent, summarizes some mainland China’s legislation from the legislativeexperience.The third part: the third part mainly introduces the related problems of thedivorce damage compensation system. Introduced the related defect compensationsystem in our country’s current legislative situation of marriage and divorce damage.Is mainly reflected in the lack of marital damage compensation, applicable scope istoo narrow, the "cohabitation","domestic violence","fault","compensation" is notstrict, the definition of compensation for divorce damage compensation difficultburden of proof, the scope is too narrow, the limitation of action is difficult to grasp.The reason for the defects of the given instructions. Especially for the parties in adivorce compensation litigation of burden of proof liability issues in, on the third canbe incorporated into the compensation obligation subject, present situation andreasons of marital compensation and may give a full description of the.The fourth part: in view of the above defects analysis focused on how to improveour marital damage compensation system. Including the improvement of the damagecompensation in the marriage, to expand the scope of compensation for the definitionof cohabitation, and the standard of domestic violence, refinement of spiritual damageamount, distribution, the burden of proof to improve the expansion of the main obligations for perfect litigation divorce compensation. Discusses the popular in thesociety at present "third" can be incorporated into the main obligations of divorcedamage compensation for divorce damages; burden of proof of the no fault party,suggested that has the condition to implement fault presumption and burden of proofto reduce the injured party’s responsibility.