The Chinese And Foreign Comparative Study For Divorce Damage Compensation And System Reconstruction

Divorce Damage Compensation, refers to one spouse’s behavior has violated themarriage obligation, and which led to the result of marriage breakdown. The innocentparty is entitled to claim damage compensation from the party at fault. The system ofDivorce Damage Compensation has the necessity of its existence, but there are stillsome problems and disputes during the current legislation and judicial practices. Thispaper will focus on the System of Divorce Damage Compensation, cross comparingthe similar systems and study on their concept definition. By collecting the data ofdifferent countries legislation and judicial practice, the paper will work on the statusof divorce damage compensation system from different nations. And the paper willcompare the different legislative stipulations on this system and conduct furtherdiscussion on some disputable problems. Also based on all the previous observationsthe author will get into conclusion on reconstruction of the divorce damagecompensation system.This paper has been divided into five chapters:The Chapter One is the outline of the divorce damage compensation system.Start with the comprehensive introduction of the outlook on this system whichcontaining five aspects: the concept and origin of this compensation, the types, thecomponents, the legal nature and the system value. Then by comparing the differenceof divorce damage compensation system, the divorce division of property system and the divorce custody system, the chapter will make further clarification on content ofthe divorce damage compensation system.From Chapter Two to Chapter Four, the paper is separately focused on thesubject of the divorce damage compensation, the applicable conditions and scope andstandards of the compensation. These three chapters are all based on the datacollection and comparison of existing legislation from China and other foreigncountries, and make further discussion on some observations. The Chapter Two ismainly focused on the addition of subject during the divorce damage compensation.The author agrees to increase the faulty party of spouse as the subject of right, andincrease the ‘3rdparty’ performing the obstructer during the marriage as the subject ofliability. The Chapter Three is focused on Definition of the Fault, the Timing Point ofRequesting the compensation and Disclaim the Right of Request. The author agrees tothe existing enumerated legislative model but also agrees to the needs of increasingthe types of faulty and other conditions which led to the fault. Also the author agreesto limit the Time Point of Requesting the compensation only during or after thedivorce but suggests building up the system of ‘In-Marriage’ damage compensation.The Chapter Four is mainly focused on the necessity and scope of the materialdamage compensation, the consideration in determining the dollar value of thecompensation and the payment methods. The author agrees that there should be clearscope of material damage compensation as well as the minimum limit of the dollarvalue, also there needs to be various payment methods and payment terms.The Chapter Five presents the author’s idea of reconstruction of divorce damagecompensation system. Based on the previous discussion the author believe thereshould be built up the dual structure which shows the parallelism of The CauseDamage and the Narrow definition of divorce damage, and this structure will be ableto corporate with the ‘In-Marriage’ damage compensation system. The author alsoprovides the detail suggestions for applicable conditions of the system, thedetermination of the dollar amount and the payment methods.