Research On The System Of Compensation For Mental Damage In Divorce

In human society,one of the most stable and firm relationship is marriage,husband and wife live together is the premise of marriage.in the same way,the basic unit of society is the family.But in reality,bigamy,domestic violence and other bad derailed is hard to be prohibited,to the party of the marriage these actions will contribute to damage seriously.one kind of damage is material.on the one hand is the spirit.For the material damage of marriage,have relatively perfect regulations in our law.But in the spirit of damages,the existing legal provisions of our country requires less,thus the author from the angle of theoretical marriage law for the lifting of the marriage after the mental damage compensation to explore,hoping to expand the development space for the mental damage of marriage after the termination of the compensation to make a contribution.Currently,China's regulation for mental damage in divorce is taken strictly,only attribute to the legal standard of the four kinds of situations,it can be included in the compensation for spiritual damage to the consideration scope.But in judicial practice,there have been more and more cases are beyond the scope of this four kinds of situations.at the same time,to the marriage of the innocent party also had a serious mental damage.We should realize the effective expansionism in the legislative development,other statutory circumstances such as bigamy,spouses sleeping together and have sexual behavior with others,drug abuse,gambling,etc should be included.On this basis,this paper studied the mental damage compensation system for divorce,hope to make a contribution to the development of China's law of marriage.This paper is divided into five parts,the first chapter is the historical review of divorce spirit indemnity system of our country,from the view of historical point of the system during the development of our country,this paper introduces in detail the following aspects.Which is the law before the embryonic stage,the embryonic stage of founding to the present marriage law during the period,the existing legal provisions and judicial interpretation of the laying stage;divorce moral damage compensation of judicial practice,that is the main responsibility of a narrow scope of legal violations,strict liability,compensation rate is low,through the above introduction to illustrate China's practice for the development of the system,and get the standards required by the law is hard to achieve.The second chapter is the thinking of divorce moral damage compensation system's subject,including the main body of the request and the rights of compensation for mental damage in divorce,that is the subject of rights,the current laws of our country to explore the problem;the main responsibility of compensation for mental damage in divorce,the spouse,the responsibility of the third research.Based on the subject of thinking,in order to prove the legal subject in the process of system operation whether should add third people or not,is a debatable issue,this chapter has also made the corresponding discussion.The third chapter is the mental damage compensation system and fault identification,including the current legal provisions of the fault form,spouses,except the spouse of third people;the narrative subject of the second chapter of subjective ideology from the perspective of theory,on different subjects,subjective ideology are the difference between the provisions of this chapter;to the main responsibility of the body the discuss about the tort law theory.Combined with the subjective aspects of the subjective description of the main responsibility,in order to discuss whether the subjective aspect of the system should be added to the principle of fault offset,and the application of the principle,study and advantages.The fourth chapter is applicable to the case of divorce moral damage compensation system,including violations of law,namely in the dissolution of marriage in the process of taking as.according to the standard of compensation,one of them can suit to the dissolution of marriage.in the process of compensation;in addition to violations of the existing laws,regulations,the author puts forward the others which should be added the fault behavior in combination of case and theory discussion,namely long-term adultery,drug addiction,prostitution,gambling,because society is changing,it is difficult to summarize the existing laws and regulations and to predict what shall be happen in the future.so,the provisions of the current legal situation outside should be added for discussion in the same way.Chapter five is the scope of compensation for mental damage compensation system for divorce and standards.including the types of damage to the interests of the view which property damage directly,indirect losses,expected benefit loss;the amount of compensation of the reference standard,namely the current laws and regulations of the reference standard,the other should be the reference standard,by the first four chapters can be the development of the system and forms an understanding of compensation for damages.as for the types of disputes,how to calculate the amount of compensation is one of the most important key problems.We should make a discussion on the scope and standards of compensation,this chapter is the four chapters explore the content summary,compensation for mental damage in divorce system is the last element of the constitutive requirements.