| In 2001,the Standing Committee of the National People's Congress promulgated the amended "Marriage Law of the People's Republic of China",which established the economic compensation system for divorce for the first time.for sure the value of housework,improve the status of women and guarantee freedom of divorce has a very important role.However,the simple legislative provisions and harsh application conditions make the divorce economic compensation system divorced from practice,and the application rate is extremely low.It is obviously unfair for those who have done more for their families to fall into poverty at the time of divorce because of the unequal distribution of benefits.If the law doesn't really beefed up to the unfair situation,is a"lazy to punish the attendance",objectively encouraged people in marriage does not pay for family,affect the society as a whole of values and moral standards,coupled with the "Civil Code of the People's Republic of China" compiling beginning,this paper will combine theory and practice,in the standing committee of the National People's Congress have announced the "Civil Code of the People's Republic of China(draft)"based on modified,the economic compensation system of divorce in the future the Suggestions for improving and perfecting the judicial practice.This paper is mainly composed of five parts.The first part discusses the connotation and legislative evolution of China's divorce economic compensation system.The connotation includes the legal provisions,concepts and main contents of China's divorce economic compensation system.Chronologically discusses the legislative evolution of economic compensation system of divorce,focuses on analyzing the "Civil Code of the People's Republic of China(draf)" in the provisions of article 1088 of the marriage and family make up,compared with the " Marriage Law of the People's Republic of China",expanding the scope of application,and respect for the parties,then through out the current divorce economic compensation system is insufficient,still need to improve.The second part discusses the necessity of perfecting the divorce economic compensation system.Firstly,it is beneficial to affirm the value of housework,introduces the theory of affirming housework and the theory of negating housework,analyzes the meaning of acknowledging housework,and protects the value of housework through the divorce economic compensation system.Secondly,it plays an important role in balancing the interests of couples.Finally,improving the economic compensation system for divorce is conducive to promoting gender equality.The third part aims to reveal the judicial practice of China's divorce economic compensation system.Through the analysis of typical cases and judicial application rate,this paper points out the deficiencies of the divorce economic compensation system,including unreasonable application scope,unclear compensation standard,imperfect exercise time,difficulty in providing evidence and uncompensated human capital.The fourth part introduces the legal provisions related to the divorce economic compensation system in foreign countries,including those in countries of civil law represented by France,Germany and Japan,and those in countries of common law represented by the United States and Britain.The fifth part puts forward six Suggestions to improve the divorce economic compensation system in the future judicial practice on the basis of analyzing the deficiencies of the draft provisions.Although "Civil Code of the People's Republic of China(draft)" has changed the economic compensation system of divorce legislation,but there is still a way of compensation and compensation standard is not clear,exercise time,difficulty of proof does not improve,not the problem of compensation of human capital,therefore,put forward the following Suggestions:one is to discuss common property system of husband and wife separation and divorce economic compensation in the couple's joint property system with separate property under the different processing methods,refined compensation mode;The second is to put forward the compensation standard which takes into account the unified scale and the case situation.Thirdly,it is suggested to enrich the payment methods by installment payment and various property forms.The fourth is to delay the exercise time;Fifth,introduce preponderant evidence rule and family investigator system to optimize the burden of proof.Sixth,the expansion of divorce economic compensation claims,compensation for human capital. |
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