Empirical Study On Compensation Of Spiritual Damage In Divorce In China

The damage compensation system for divorce affirmed in Article 46 of the current Marriage Law has been implemented for nearly 18 years in the judicial practice in China.The damage compensation under this system includes both compensation for material damage and compensation for spiritual damage,which is a crucial system for marriage legislation in China.It not only provides a legal basis for the non-fault party to claim compensation in marriage and family,but also regulates the punishnent to the fault party for violating the legal and moral obligations of marriage and family to a certain extent,which is conducive to the realization of fairness and justice of legislation on marriage and falily.It could be found that material damage has been compensated better in judicial practice because it can be quantified.However,it is difficult for compensation for spiritual damage in divorce to achieve its desired legislative results in practices because of its difficulties to be proved and quantified.Therefore,how to realize compensation for spiritual damage in divorce and give full play to its proper function has become a difficult problem injudicial practice.In recent years,there have been disputes about the existence or abolition of the compensation system for divorce damage in academic circles.Some scholars claim that marital infringement can be judged according to the general rules of infringement,it is unnecessary for compensation system for divorce damage to exist independently because of lacking of operability in practice.Others believe that compensation system for divorce damage has the basis of social demands,but also the solid jurisprudential basis including rights remedy,legislative value and system,its unique function and special design of system cannot be replaced by other systems.Therefore,we should review its shortcomings and improve the system in terms of its difficulty to be achieved in practice.Additionally,some scholars declare that the compensation system for divorce damage should be reformed and expanded its scope of application,and the compensation system for spiritual damage of infringement of spouse rights should be established at the same time.Recently,the Standing Committee of the National People’s Congress has published the Marriage and Family Code(Draft),making amendments for the Article 46 of the current Marriage Law.Besides retaining the four kinds of faults recognized in the current Marriage Law,Article 869 of Part IV of the Civil Code(Draft)adds the fifth”other major faults’*as the basic clause,which represents the attitude of legislation,that is,compensation for divorce damage is necessary,and its scope of application should be expanded so that all major faults in marriage can be included into the category of compensation for spiritual damage in divorce.In view of this,it is necessary to study the judicial practice of Article 46 of the Marriage Law to make the preparation for the landing of the new laws and achieving its desired value.Based on the research and analysis of judgements involving compensation of spiritual damage in divorce during 2015-2017 on the web of China Judgements Online,this paper will study the difficulties of compensation for spiritual damage in divorce under the current legislative conditions.Through the summary of cases and analysis of problems,this paper will explore the difficulties,emphases and realization paths which should be paid attention to in the landing of new laws in the future.This paper will be divided into four parts.The first part is an overview of empirical research on compensation for spiritual damage in divorce in China.It elaborates the background,objects and methods of empirical research,and classifies the specific documentary samples in the research according to their years and characteristics.The second part is the analysis of the empirical data of compensation of spiritual damage in divorce in China.By comparing and analyzing the statistical data,it explores the characteristics of compensation system of spiritual damage in divorce injudicial practice.The third part is about the problems and causes in the judicial practice of compensation of spiritual damage in divorce in China.Through the analysis of samples comparison and development characteristics,it will clarify that the main problems focus on the difficulty of evidences,the inconsistency of appeal and judgment and the inconsistency of the amount standard the compensation of spiritual damage in divorce under the circumstances of limitation of legal provisions themselves in the practice of compensation of spiritual damage in divorce,and then further explore the roots of the problems above.The fourth part is the suggestions for improvement of the compensation for spiritual damage in divorce in China.By expanding the substantive rights and combining with the basic clause of Marriage and Family Code(Draft),it will provide more flexibility in the legal basis for spiritual damage compensation in divorce.More importantly,the judicial procedure should improve the compensation for spiritual damage in divorce,expand the scope of proof and pay attention to the protection of the rights of the non-fault party.The appropriate intervention of public power and divorce counseling mechanism and the protection of the rights and interests of young children should be improved Blindly pursuit of closing rate should be put to an end,demands of the parties should be taken more seriously,and the specific applicable standards of the compensation amount for spiritual damage in divorce should be clarified.