Studying Of The Divorce Damage Compensation System

In the April4th,2001modification of china’s “marriage law”, divorce damagecompensation system was stipulated. However, viewpoints of the character of responsibilityof divorce damage compensation vary greatly, someone regard it as tort liability, and othersregard it as breach liability. This paper suggests that it is tort liability taking the fault of thelitigant as the constitutive requirement. Therefore, the constitutive requirement of theresponsibility of divorce damage compensation including four factors: illegal activities, factsof damage, relation between causes and effects and subjective negligence. Furthermore, notonly economic but mental compensation should be encompassed into the indemnificationscope. The chief responsibility subject of divorce damage compensation should be the guiltyparty of divorcement, while different ideas are held as to that if the third person should beinvolved too. The chief subject of the claim for damage compensation is the innocent party ofdivorcement, as well as the other family members. The responsibility of divorce damagecompensation exist a lot of difficulties in practice, although it is a great advancement, andperfect the Legal System of society. The all trouble comes from the limitation of the lawmaking about which the system of divorce damage compensation.On the basis of introducing the concept of divorce damages and characteristics, carryingout comparative law analysis of divorce damages system of the countries in the world. thereare differences of national divorce damages ststem mainly in the causes and range of divorcedamages requisition right, requisition conditions of divorce damages, the main body of rightsand obligations. Through analysis of the divorce damages legal provisions and lack,proposing the divorce damages perfect mechanism from six aspects of the divorce case, thesubject of rights and responsibilities, the fault issue, the providing evidence burden and themanner and amount of divorce damages. In the system of divorce damage compensation, thecompensation scope requested is narrow, so in the practical operation, the compensation scopeis not limited to the four circumstances provided in <<The Marriage Law>>. The claimsubject should be extended, other family members should have the right to divorce damages Compensate, and the main responsibility body should be extended to the third person, butmust be applied in specific circumstances. For the difficult problem of the providing evidence,upsiding down the providing evidence burden is an important step. The "fault" meaningshould be clearly defined, and should implement the principle of fault offset. At the moment,manner and amount of divorce damages compensation should also be clear, and compensationquantify to moral damage compensation. Due to the compensation for substance damage,aside from the compensation for active damage, the available Interest can obtain furthercompensation under a certain condition.