| Articles 40,42,and 46 of the current “Marriage Law” of China respectively stipulate three divorce relief methods.This paper uses the marriage contract theory to analyze the generation,essence and judicial application of divorce maintenance system,and puts forward some suggestions for the construction and perfection of divorce maintenance system in China.The first part is the basic theory of divorce maintenance,which mainly introduces the title of divorce maintenance system,the nature dispute,the development history of the system in modern times,and so on.Through a simple theoretical introduction to the divorce maintenance system,I hope to have a systematic grasp of the system as a whole and understand and study the system more deeply under this premise.The second part introduces the process of relationship contract formation through the introduction of relationship contract theory,analyzes the value transcendence of relationship contract to classical contract theory and the characteristics of relationship contract theory,and introduces the relationship contract theory into the field of marriage law,discusses the value embodiment of relationship contract and relationship norms in marriage relations,thus regards marriage contract as a kind of relationship contract.At last,the theory of exclusive investment and precipitation capital is used to discuss the nature of divorce maintenance claim and the rationality and necessity of establishing perfect divorce maintenance system in our country.The third part mainly introduces the problems of the current divorce economic assistance system and the compensation system of domestic labor service in the legislation and judicial practice in China,such as the harsh conditions of identification,the low rate of application of cases,the determination of absolute difficulty standard,the lack of change and termination of maintenance expenses,and the shortcomings of the current social security supplement theory,the compensation for breach of contract and the return of improper gains.The fourth part firstly demonstrates the necessity of establishing and perfecting the divorce maintenance system in China from the perspective of social security,family stability,legal fairness and justice,then analyzes the advantages of perfecting the divorce maintenance system compared with the traditional relief system by using the relationship contract theory,and finally puts forward some suggestions on the classification of the divorce maintenance system,the calculation and change of the maintenance cost and the judicial. |
