Research On Divorce Damage Compensation System

After the modification of 2001 "marriage law", the system of compensation for divorce damage improves the divorce relief system, reflects the country’s public relief to the disadvantaged party and humanistic care. Subsequently, in order to guarantee the correct implementation of the system of compensation for divorce damage, interpretation(one), interpretation(two), interpretation(three) of marriage law also stipulates the complementary. In the background of the current society, the establishment of the system is of great realistic significance to maintain the stability of marriage and family and social ethical order. However, we have to face is that,after more than ten years of judicial practice, the effective application of the system still faces many problems, needs to be further improved. Therefore, it is necessary for us to reflect and study more deeply on the system, in order to maximize its own relief effect.Besides the introduction, the whole article consists of five parts, totaling around thirty thousand words.Part I Theory to explain divorce damage compensation system, mainly on the basic theory of divorce damage compensation system.First,to clear the connotation and elements of divorce damages, followed by the analysis of theoretical basis and legislative value, and finally describes the functions and role of the system.Part II Inspection and evaluation of extraterritorial divorce damage system, this part mainly studies the different legislation about the divorce damage compensation in France,Japan,American and China’s Taiwan region, then makes comparison and analysis about the different provisions on extraterritorial legislation on divorce damage compensation, from which sum up for our country to draw lessons from the beneficial experience of legislation.Part III Status of divorce damage compensation system in China’s mainland, mainly analyze two aspects of the legislative status of divorce damage compensation system and the judicial application of the mainland.To combine the provisions of existing legislation and the latest survey data for scholars to analyze, pointing out the existing problems in the judicial practice: low applied rates, actionable causes range is narrow, criteria for determining the amount of compensation is lack of clear standards,the amount of compensation is low.Part IV Controversial views and comments of divorce damage system in China’s mainland,mainly investigate the obligations of the main right of divorce damage compensation system, the scope of statutory subject matter, the burden of proof allocation and determine the amount of compensation for moral damage in four areas.And put forward the author’s own viewpoints: the right of the main support of the divorce damage compensation system is defined as the no fault spouse,the subject of obligation should not include the third people, the burden of proof should be a reasonable allocation, the amount of compensation for mental damage calculation standard should be clear.Part V The proposal for divorce damage compensation system in China’s mainland,to combine on the basis of China’s national conditions and extraterritorial legislation beneficial experience, to learn the results of previous research on divorce damage compensation system, putting forward the following points:First, broaden the scope of application of divorce damage compensation system. Second, improve the judicial application of the rules of evidence. Third, clearly the standards about amount of the compensation for spiritual damage, the couple loyalty agreement in the agreed amount as reference factor.