| In the field of division of labor,women occupy an increasingly important position in the labor market and gradually reshape the pattern of division of labor.This phenomenon is also reflected in the judicial field,with the growing female judges in the world,and the influence of gender differences among judges has attracted more and more attention.Although the conclusions are not consistent,many existing research documents show that judges’ decisions are influenced by many factors,among which gender is one of the important factors.Especially when it comes to gender sensitive cases,female judges tend to protect women.In some cases of gender discrimination and sexual assault,female judges also show signs of supporting the plaintiff more.The possible reason is that women are relatively weak in the whole social system.Compared with male judges,female judges are more likely to experience the plaintiff’s experience in the past.Therefore,female judges must make special efforts to help her group.I have studied the divorce damage compensation system in our country through the cases in judicial practice,and analyzed its independent value and its shortcomings in judicial application.The original intention of setting up the divorce damage compensation system is to punish the wrong party in the marriage relationship through the distribution of rights and interests,so as to realize the relief to the innocent party.However,there are still some defects in the design of the compensation system for divorce damages in China,and the value of legislation cannot be brought into full play in judicial practice.Therefore,this system has not only caused controversy in practical circles,but also caused scholars to question the rationality and necessity of its existence.The main points of criticism of the system in the theoretical circle can be summarized as follows:(1)It violates the principle of no-fault divorce;(2)There are few applicable cases and the cost of judicial application is too high;(3)General tort law can provide relief and is more convenient;(4)Marital tort system can replace divorce damages,so there is absolutely no need to set up a separate divorce damages system.On the other hand,the divorce damage compensation system also encounters many difficulties in judicial practice:(1)the application of divorce damage compensation is limited,which can not completely cover the behavior of the wrong party;(2)It is difficult for the parties to give evidence,the standard of proof is strict,and the facts of proof are difficult to be recognized by the court;(3)The scope of compensation is unclear and the compensation standard is too general;(4)The application situation is single,and it is impossible to provide relief for the parties in time.Taking the divorce damage compensation standard as an example,it is relatively easy to determine the material loss in judicial practice,but it is difficult to quantify the mental loss caused by the destruction of marriage and family relations by the wrong party,and in divorce disputes,the non-fault party seeks more compensation for mental damage;In addition,there is no clear compensation standard in the relevant interpretation of mental damage compensation,but in judicial practice,the maximum amount of damages is 50,000,which is obviously difficult to match the current family income level in China and achieve the legislative purpose.At present,in the absence of relevant laws and regulations and judicial interpretation to make corrections to the compensation system for damages,the judicial discretion of judges plays a vital role in exerting the legislative and social value of the compensation system for divorce damages and fully protecting the rights and interests of the parties to marriage.On the basis of the above theoretical analysis,I start with the amount of damages,and use the regression analysis method to investigate the influence of judges on the application of divorce damages system.First of all,through the analysis of divorce damage compensation system,I have found several important factors that affect the establishment of divorce damage compensation litigation.Besides the four situations clearly stipulated in Article 1091 of the current Civil Code,two situations,namely,the existence of extramarital affairs and having children born out of wedlock with others,are often used as litigation reasons for filing damages compensation and have been recognized by judges.I regard these six situations as control variables of regression model.Then I collected 309 divorce judgments involving damages from the judgment documents network,and extracted the name of the judge,the sex of the parties and the situation of the wrong party as explanatory variables.However,the important variable in the regression model,judge gender,cannot be obtained directly from any channel.Therefore,I have adopted two ways to confirm the judge gender:First,I have confirmed the gender information of most judges through public channels,including China Trial Open Network,news reports,local court websites and We Chat official account.Second,I used the research results of Yu Jiangde and others to estimate the gender of the remaining judges.Chinese names contain unique gender information,so they developed a naive Bayesian classifier to estimate their possible gender.Using the data collected above,I established a multiple regression model to estimate the impact of various factors on the amount of damages.Regression results show that the judge’s gender has no significant impact on the amount of damages,but the claimant’s gender and the judge’s gender are consistent with the claimant’s.I further classified the cases according to different litigation reasons,and found that the gender of the claimant and the gender of the judge were consistent with the claimant,which also had a significant impact on the amount of compensation.In addition,the gender of the judge also had a slight impact on the amount of compensation in cases except domestic violence.Finally,I looked at the cases assigned to judges of different genders,and the results showed that in the cases assigned to female judges,the gender uniformity of judges had a very significant impact on the amount of damages,while the influence of this factor did not exist in the cases tried by male judges.Under the background of Chinese society and family,the woman is usually the relatively weak party.The results of such analysis show that the people’s judges have implemented the legislative idea of caring for the difficult party in divorce proceedings,and also show that the judge’s gender does have an impact on the judgment result.Therefore,it is necessary for China to issue more practical guidance on the standard of compensation for divorce damages in order to avoid the arbitrariness of justice from hurting the parties as much as possible.My research still has limitations in many aspects,including:(1)sample missing.Although great progress has been made in the construction of judicial transparency in China,for various reasons,the judgments I can obtain are still very limited;(2)Because the staff may selectively upload the judgment documents,there is a certain bias in my sample;(3)Key variables are missing.Because the information provided by the judgment is limited,I can only get the judge’s name and infer his gender from it.The inference is not entirely accurate,and other relevant information such as the judge’s age,political outlook,work experience,etc.can not be found;(4)Unable to obtain the whole picture of the litigation process.Compensation for divorce damages may be put forward either in litigation or in the process of divorce mediation.The way for the wrong party to provide damages may be to pay a specific amount,or other ways such as dividing the physical property by the judge.We can’t spy on the process of multiparty negotiation and game only through the judgment,so we may have lost some important information.Although my research results provide an important perspective for China’s judicial decision-making research,further research is needed in the future to further explore the interaction between gender roles and legal and extra-legal factors in the judicial process.At present,my research can help people better understand the role of judges’ gender in the judicial process,and provide researchers with an effective method to use data analysis technology in social research. |
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