| Divorce damage compensation system as the bright spot in 2001 "marriage law" amendment,however,since the implementation of the system,the judicial application status has been poor,theory and practice on this system has also been argued for scrap.Purpose is to punish the system leading to the marriage was the guilty party,economic compensation from the no-fault party,however,from the point of view of legislation,the "marriage law" the provisions of article 46 the scope is too narrow,the related judicial interpretation is not in evidence,procedure,responsibility main body is very good,is a barrier to the parties exercise their rights in practice,the judge at the trial,there is different sentence,change the connection with the judge's thinking.As a result,the condition of the system of judicial application is not very desirable,difficult to achieve the legislative value,become an obstacle to the infringement in the marriage and family,in the exploration of the civil code of marriage and family make up,whether to keep the system,how to better realize the couple between civil rights and interests maintenance,has become many scholars and experts and law maker's concerns.This article will provide a statement of opinions on this basis.This article is divided into three parts,the first part mainly is a general overview of the divorce damage compensation in our country,from the historical evolution of divorce damage compensation in our country,to the present law,carries on the definition,nature,thus carries on the comprehensive understanding,and combing theory and practice on the discussion of the remaining waste,summarizes the dispute focus lays a foundation for the article further discussion.In the second part,the author puts forward his own opinions and Suggestions on the basis of summarizing and combing the dispute.The author thinks that the divorce damage compensation in terms of its interest measure,do more harm than good,in reality it is difficult to realize its legislation value,should be abolished in the civil law: first of all,from the perspective of theory analysis for its foundation,it belongs to primary or secondary rights worthy of consideration;And its rules and laws related to insufficient coordination,also caused the judge in the judicial constrained by law,will inevitably appear different connection,and make the husband and wife marital tort is difficult to guarantee;In addition,this system deviates from the development direction of the world marriage law,which is against the trend of the lawless marriage legislation.Second analysis from practice,the difficult of divorce damage compensation,narrow range,and tie the divorce damage compensation and the provisions of the judicial cost is high,the social benefit is low,less use in a divorce case,low approval ratings,doesn't conform to the principles of efficiency,and the judge handle such cases in trial use is the infringement of the judicial ideas.The third part is to abolish the divorce damage compensation in our country,how to explore measures to better safeguard the rights and interests of between husband and wife system put forward their own opinions,the author thinks that in the context of uniform civil code,between husband and wife property relationship with equality,therefore shall specify a couple of tortdamage compensation,the compensation for divorce with no connection.Therefore,need to first specify the spouse rights to personal and property rights between husband and wife,carries on the comprehensive system of rules,and through the further perfect of marital property system as a couple of tort damages;Also because of the relationship between husband and wife is different from the general relationship between the parties,the case for a couple of problems of proof,and bear the way also should make different from general civil tort,so as to better solve the contradiction between husband and wife,promote family social harmony,safeguard the interests of the divorced couple. |
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