Case Study: The Difficulty Of China Divorce Damages Lawsuit

With the rapid development of the market economy and the richness and complexity of people’s life, marriage has become more contradict internally, The reason of broken marriage are various. Since the early days, every revision and interpretation of our marriage law are adapting to the change of times and people’s attitudes. Divorce damage compensation system is to adapt to the times. The new situations and new problems in practice and justice demand for the development and improvement of the divorce damages system. Divorce damage compensation system provides legal support for the injured parties to obtain compensation. On the one hand, the injured party gets the spiritual and material compensation. On the other hand, the other party will be punished. It avoids the occurrence of a vicious act of revenge of the victim and establishing a society with a public order and moral.The amendments of “People’s Republic of China Marriage Law” in 2001 established the divorce damages system. As a major advance of marriage law, it provides four scenarios of the right to raise divorce damages compensation :( i) bigamy;(ii) has a spouse living together with others;(iii) the implementation of domestic violence;(iv) maltreatment and abandonment of family members. This paper studies the case of the second and third one. It is well known that the main function of the substantive law is to provide the right and responsibilities. The scope and content of legal rights are usually subject to the provisions of the law. Therefore, whether the specific provisions of the substantive decide the constraints in the process. Because of the imperfect of the Marriage Law and relevant judicial interpretations of the provisions, parties in such cases is difficult to prove. This paper starts from the specific cases to analysis the reasons of the divorce action for damages in all aspects of the difficult burden of proof and provide suggestions to solve this problem. This paper has four parts:Part I: Case Analysis. This part is mainly to introduce the case and analyze the focus of controversy. Lee violated the duty of loyalty during the marriage and lived with the third person. He is violated to his wife and his wife sued to the law and asked for divorce. She asked for more propriety and Lee should pay her 50,000. But she failed, and the evidences presented by Cheng were not totally accepted by judges.Part II: The outline of basic theory and analysis of the focus of controversy. This section is divided into two sections: an overview of the relevant basic theory; analysis of the focus of controversy. The first section is divided into two parts: the concept and characteristics of divorce damage compensation system; the concept of divorce litigation for damages and elements; problems and causes of lawsuit of divorce damage compensation. Causes of divorce damage compensation include: lack of legal provisions; marriage and family life are privacy, so it is difficult to collect evidence; parties’ awareness of the law is weak influence evidence collection and fixed; lack the means to collect evidence of the parties. Analysis of the focus of controversy include: improper cohabitation and recognized standards of domestic violence; whether the evidence of violations of privacy analysis, Lee mentioned the process of a first instance; the process of a divorce for the first trial the evidence presented whether damages have probative force.Legal provisions for unfair cohabitation only has one sentence: there is no spouse and extramarital sex as husband and wife, sustained and stable living together; for the definition of domestic violence is also simpler and plainer: Implementation of family members of the physical, mental, etc. It is not clear to the judicial practice of the law makes it difficult, this paper will analyze the reasons for specific judicial practice and the difficult operating performance in the last part will be given specific suggestions how to solve this problem, so as to facilitate judicial practice operation.The question of whether the evidences Cheng raised were violated the privacy of Lee. Privacy refers to a right that individuals do not want to be made public or others known. It belongs to the privacy of personal information and it is the right that is a kind of personality with no relationship with property. Whether this rights of privacy can put “improper cohabitation with others included is not concerned between the academy. Scholars stand for improper cohabitation with others’ are basically on the perspective of the general social value that extramarital affairs were contrary to the social and moral behavior. The law is to protect the privacy of the public interest, the things contrary to the basic value cannot be protected by law, they do not comply with the standard. Scholars held the opposite view, who basically to consider the privacy itself. People have absolute moral rights, privacy and personality. They should be protected by law. I support the former view. Privacy protection should be in line with social ethics. This paper will analyze the evidences by Cheng and give an opinion on whether the evidences are invasion of privacy.Question of the probative force of the evidences raised by Cheng. Based on general tort rules, it should meet the four constituent elements under the tort law that can be identified constitute damage: illegal, damaging consequences, there is a causal relationship between the offense and the consequences of the damage, the perpetrator subjective fault. Needless to say, the innocent party’s evidence must satisfy the four constituent elements. But the question is how to determine whether the proposed evidence indicates that the innocent party who carried out acts of a causal relationship between the offense or offenses and consequences of the damage. The question is whether evidence of this paper can prove cohabitation improper behavior at fault with others, as well as domestic violence. From the judicial practice, very few cases were successful identified. The reasons are non-acceptance of these evidence the court or insufficient evidence submitted by the parties. On the other hand that the court finds that the standard is too harsh. In this case, Lee is not recognized this fact. Lee has improper relationship with others. The court did not support the idea of domestic violence. I will analyze the evidences one by one, and give my own opinion on whether the evidences are provable and whether they can prove Lee was live with others and having domestic violence on Cheng.Part III: Solutions on Divorce Damages Lawsuit. This part presented soluti ons of the problem and analysis presented in front of several parts. It includes the following three aspects: solutions of the difficulty of divorce damage laws uit; clearly identified criteria; awareness evidence of the parties. In the divorceaction for damages, I will give two concrete proposals: reduce the innocent p arty’s burden of proof; improve the "New Civil Explanation" on 106. In the st andard section, in particular: a clear identification of unfair cohabitation standar ds; identification of domestic violence to be refined in order to easy to operate.Enhance the evidence awareness of the parties, in particular: strengthening gui dance of the court; enhance the parties’ legal awareness; attention to collection and fix evidences.The key of lawsuits is to play evidence. If the parties cannot provide evid ence when they are violated, it will not benefit to protect the parties themselve s and the improvement of the construction of China’s legal system. Therefore, I studied this issue and propose solutions to the proposal, in order to bring ab out progress on the system and the corresponding action.