On The Perfection Of The System Of Divorce Damage Compensation In China

Even many family as society's most basic unit, has a special significance. It not only involves personal and family rights and interests of social order and public interest has the important influence. In recent years, our country's marriage concept in other countries view of marriage and interconnected network of double shadow quietly change, the indirect performance is our country divorce rate continues to rise. Marriage is the identity relation based legal relationship, due to blood, emotional factors influence the marriage when the thing of human rights and obligations is complex. For example, at the time of divorce may be involved in the divorce damage compensation, property division, solarium request for money in essence Is between the parties to the marriage emotional disputes. It is based on the the inherent property of the marriage makes judges are often not simply make a either or decision, only to avoid conflict, eliminate opposition of the value orientation of find a balance the interests of both sides at the break, so as to maintain the stability of the family and society. At present our country is working to build a country under the rule of law, which requires the laws existing should revise play legislation expected value, not suitable for legal should be rid of, and legal gaps and loopholes should be obtained and the supplement and update.Self maintenance provisions according to the law of marriage and divorce damage compensation system in 2001 revised< Marriage law> was first established, so that China's marriage law of the blank can be filled, marking China's marriage and family legislation of major progress. The system not only can guarantee the court in the judgment of divorce damage compensation case law suggests that legislation to protect the marriage and family relationship in the injured party position. But this system from the establishment at the beginning up to now has been plagued by controversy, because the law for this system is too general, resulting in the reality of the injured spouse It is difficult to invoke this provision has the right, and the judge in the application of the system is powerless. In this paper, based on the At the present stage of our country's legislative situation, the basic theory of the divorce damage compensation system, the legislative status and defects of the analysis, try to put forward some specific measures from the legislative and judicial aspects.In addition to the preface and the conclusion, this thesis consists of four parts.First part for an overview of the divorce damage system, first of all to the meaning of the system of compensation for divorce damage as a starting point, the basic category of the system are introduced. Draw the divorce damage compensation system, including the main function of fill damage, spiritual comfort and sanction alert function. And the legal nature of the divorce damage compensation system to analyze that divorce damage compensation system is the nature of the infringement. Finally, the divorce damage compensation four elements is discussed in detail, summed up the request of divorce damage compensation must also meet the four elements, short of one cannot.The second part is the Chinese divorce damages system basis and legislative practice analysis, from the legislation value of our country and the practical needs of this system analysis, can be seen that although the system in judicial practice because of the difficulties of proof parties rarely take the initiative to apply and the court can not support compensation problem, but the system built to change in China in the marriage and family relations rely solely on moral opinion to enlightenment and condemned the usual practice of the fault spouse, really do to protect the family, mothers of children with constitutional principles in the law embodied the substantive justice. In China's current marriage legal system and divorce financial help system and economic compensation for divorce System together constitute the complete structure of the divorce relief system, has the value of independent existence, can not be replaced or abolished, should continue to play its value, and the divorce damages system of legislation and practice analysis.The third part is the defects existed in the system of divorce damages in our country, the subject of divorce damage compensation, divorce damages to the issue of burden of proof, the divorce applies to the case of compensation for damage and compensation for divorce damage compensation is analyzed in detail, summed up our divorce damage compensation system is needed to solve the problem.The fourth part for suggestions to improve our divorce damage compensation, according to the problems we have on the system of compensation for divorce damage summed up is discussed, and proposals to expand the scope of compensation for divorce damage other adultery included support in our country to construct the marital damage compensation system, and the "third party" should become the divorce damage compensation liability subject discussed, nor the issue of divorce damage compensation system in the no fault SPOUSE PROOF suggestions, reasonable distribution of the burden of proof, so as to demonstrate the law of justice.