An Empirical Study On The Compensation System For Divorce Damages In China

The compensation system for divorce damages has been introduced into the marriage law of China since 2001.Its original intention is to protect the legitimate rights of the parties to no-fault divorce,to compensate for their material damage and mental trauma,and to sanction the illegal and criminal acts in the process of marriage.However,as the provisions of article 46 of the marriage law take the form of exhaustive enumeration,the scope of application of the divorce damages compensation system is too narrow.Besides,it is limited by the difficulty of proving proof,the subject of responsibility,the time of starting and many other factors.China's divorce damage compensation system is rarely used in judicial practice,which is far from the original intention of the legislation.At present,China is at an important inflection point in the era of "new civil code".In order to explore the path to activate the compensation system for divorce damage in China,and reflect on the legislative and judicial measures to improve the system,the author tries to conduct a judicial empirical study on the system,excepting to find out the specific problems and causes of China's divorce damage compensation system in the process of analysis,and put forward corresponding suggestions to improve China's divorce damage compensation system.This paper has four parts:The first part mainly introduces the background,object and method of the empirical analysis,the necessity and significance of the empirical analysis.This paper adopts quantitative analysis method and combines case studies with case statistics.the cases of divorce damages on January 1,2019 solstice on January 1,2020,which was published on the China Judgements Online,was used as a sample for empirical analysis.The second part mainly introduces the data statistics of the retrieved divorce damage compensation cases and analyzes the problems and causes of the system.The third part mainly introduces the extraterritorial legislation and judicial status of compensation system for divorce damage and its enlightenment to China,In this part,the author mainly introduces the legislative and judicial status of Japan,France.Taiwan,the United States and Hong Kong,and summed up their advanced legislative and judicial experience on the compensation system for divorce damage.In the fourth part,the author combined with the empirical analysis results of the second part and the extraterritorial legislative and judicial experience of the third part,reflected on the way to perfect the divorce damage compensation system in China,trying to put forward some suggestions from the aspect of legislation and judicatureAt present,the work of compiling the various parts of the civil code is going on This is related to the improvement of our country's legal system and national governance capacity.It is of milestone significance to promote the process of our country's modernization legal system.Two changes have been made to the compensation system for divorce damages in a draft civil code.One is to remove the meaning of "spouse" from the phrase "cohabitation with others";The second is to add the provision of "other major offences".This paper innovatively analyzes the new amendments of the draft,reflect on what other shortcomings exist besides the above two changes.Laying the groundwork for the new law and further improving the compensation system for divorce damages,In order to activate the system more effectively,promote the perfection of our civil law system and promote the harmonious development of society.