Fault-based Divorce Litigation: Difficulty In Proving Fault

Divorce damage compensation system as a relief system was established by the2001"Marriage Law", which fill the marriage damage legislative gap. In recent years,marital dispute cases increased year by year, but the actual effect of the system waslimited, difficulties of evidence increasingly highlighted, make the implementation ofthe results with the expected results vary greatly, difficulties of evidence have becomethe biggest problem in divorce damage compensation system. In this paper, in order tosuggest some proposal, letting extramarital affairs and domestic violence as the mainstudy object, using hermeneutics, sociology and comparative research methods,combining with primary cases and data, discussing the manifestations of difficultiesand causes, it must be have important practical significance and theoretical value.According to the law, innocent party in order to obtain compensation mustprovide evidence, but due to extramarital affairs and domestic violence usually havehigher secrecy, the impact of traditional thinking and legal culture, it is difficult tocollect evidence on its own. Many people turn to rely on private detectives, but thelegitimacy of the main body and forensics are also worried, visual evidence has oftenbeen identified as illegal evidence. We can see from the judicial cases and basic data,Evidence preservation, evidence source, evidence effectiveness and illegal evidenceare the main manifestations. So this paper suggest from the legal theory, system andpractice. Firstly, coordinate right conflict on the legal level. Reconcile the right ofprivacy and the right of spouse, if something is about the spouse and family interest, itshould belong to the right of spouse; the other is personal privacy, so that two partiescan be harmonious coexistence state of equilibrium. Secondly, adjust the evidencerules on the system level. For the limitations of evidence, through detailing legal rulesof evidence, clearing evidence collection methods, distinguishing between objects andplaces to confirm, appropriate to expand at the discretion of the judge trade-offevidence; For the legitimacy of private detective, regulating the private detectiveindustry, from raising barriers to entry, making relevant laws and regulations and strictregistration to improve the level of private force; For the unfair burden of proof, let the no-fault party undertake preliminary proof responsibility, then court consider withability of proof to change the burden of proof; For unreasonable standard of proof,using relative advantage prove standard, but should be limited, such as not apply tothe separate trial and the verdict reason should be told. Finally, broaden the forensicson the practice level. When the person is not willing to testify, can apply to the courtfor compulsory provide evidence; when situation is danger, use proof and protectionmeasures; the court and grass-roots organizations should strengthen the guidance ofproof, make investigation if necessary.The innovation of this article is the pioneering of topics, fully integrated into thejudicial practice experience and data, joined in justice pilot projects on the basis of theexisting theoretical research. Due to the author’s theory of civil law is still not enough,especially the lack of foreign language reading, on the comparative study is not goodenough.