Research On The Moral Damage Compensation In Divorce

In recent years, with the development of society and the liberation of people’s mind, the divorce rate of China presented an increasing trend. As a result, more and more divorce cases are requiring moral damage compensation. In 2001, our country revised “Marriage Law”. This law clearly stipulates the system of moral damage compensation in divorce, which is a major breakthrough and a significant improvement in China’s marriage legislation.The moral damage compensation in divorce refers to that if one of the spouses implements the statutory misconduct, resulting in mental suffering to a no-fault spouse, thus leading to divorce; no-fault spouse has the right to request compensation from the fault spouse. The purpose of this system is to protect the weak party in the marriage relationship, and to protect the legitimate rights and interests of marriage innocent party. Since 2001, the system of moral damage in divorce has been implemented more than ten years. During that period, there are still many problems and shortages in complicated and various judicial practices. Based on the discussion of moral damage compensation system in divorce, this thesis analyzes the problems in judicial practice, and puts forward some suggestions.This thesis contains six parts. The first chapter lists three typical cases to present the theoretical disputes and practical problems, and point out the topic of this article.The second chapter shows the study of compensation for mental damage in divorce. Mainly including the connotation, nature and foundation of the right. Determine the nature of moral damage compensation in divorce is a tort liability, and seeking the foundation of the right to claim.The next four parts mainly express the analysis and improvement of the problems of the moral damages compensation in divorce that reflected in the judicial practice. The third chapter analyses the main body of relationship of moral damage compensation in divorce, and discusses whether the subject of right includes other family members and the subject of obligation including “the third party” who destroys the marriage and family.The fourth chapter analyses the application of moral damage compensation in divorce. Firstly, I discuss whether divorce is a precondition of moral damage compensation. Secondly, I analyze whether the moral damage compensation applies to divorce by agreement. Thirdly, I analyze the applicable situation of moral damage compensation in divorce and put forward the related measures.The fifth chapter is to analyze the distribution of the evidential burden of the parties, and take reasonable measure to reduce the providing proof burden of the non fault party.The sixth chapter is to analyze the standard of compensation of moral damages in divorce, and put forward some suggestions for defining the amount of compensation of moral damage in divorce.