Analysis Of The Compensation System At Divorce In Our Country

In recent years, China’s divorce rate is increasing year by year, violations led tomore and more divorce cases. The pain which brought to both spouses is self-evident.Extramarital affairs, abandonment of family members and some other violationsdamaged innocent spouse, children and other family members. Although《China’sMarriage Law》and《Explain (a) of China’s Marriage Law》has established thecompensation system at divorce, which intended to adapt to the development of socialand family law practice, to protect the innocent party legitimate interests in marriage.The implementation of this system is conducive to maintaining the relationship ofmarriage, to protect the innocent party’s legitimate rights and interests, and sanctioninnocent party’s violations.However, when facing the new cases of judicial practice, this system is still notgood enough, coupled with the results of the courts, make it difficult to achieving alegal case knot things affect and bring social harmony. I intend to focus on four issuesof the current judicial practice.The paper is divided into four parts. The first chapter will give a primarilydefinition on compensation system at divorce, then make the legal characteristicsclear, and summarize three functions of it, include fill damage, soothe the injuredparty and sanction. At last, introduced the current situation and the main content of theforeign legislation.The second chapter discusses and analysis the request right in the divorce.Questioned "the Theory of breach of contract” based on the traditional marriage ethicsand family legislation of our country. And described the "Infringement Theory".Atlast, analyzed the main elements on the marriage laws.The third chapter mainly discusses the current situation of moral damagecompensation system on divorce. Summarizes the narrow scope of main subject ofrights and obligations, the statutory damages provision cannot meet the needs of thejudicial practice, the amount of compensation is no uniform standard and theinequitable distribution of the burden of proof.The fourth chapter is focused on propose appropriate legislative proposals forquestions raised by Chapter III. Relax the body and the scope of rights and obligations;for example, make the mistress who deliberately destruct the marital relationshipcome into obligations subject. Increase the legal cases for damages requestappropriately by using hybrid legislative means. Refine judges’ discretion matters properly. Learn from "principle of rime facie" and "Inverted the burden of proof", toestablish a mechanism to assist on evidence, reducing the burden on the victim’sspouse, in order to protect and realize their requests.