Divorce Damages "Other Significant Fault" Application Of The Study

The 2001 Amendment to the Marriage Law added a new divorce remedy system,namely the divorce damage compensation system,which was established with an analysis of China’s basic national conditions and reference to the advanced experience of other countries,and has played an important role in protecting the rights and interests of vulnerable groups and married women,and has provided a direct and solid legal basis for the people’s courts to punish those who violate their legal obligations in marriage.However,due to theoretical shortcomings,the system is too simple and abstract,and has attracted extensive discussions in both theoretical and practical circles since the day it was established.Article 1091 of the Civil Code amended the provisions of Article 46 of the former Marriage Law by adding the bottom provision of "(e)other major faults",adopting an illustrative approach to legislation and establishing the principle provisions of China’s divorce damage compensation system by combining enumeration and generalization,in response to the principle of Article 46 of the former Marriage Law.It complements and expands on the enumerative legislation adopted in Article 46 of the former Marriage Law.The addition of "other major faults" improves the dilemma of insufficient statutory circumstances and further increases the flexibility of the divorce damages system.However,the interpretation of the "other significant fault" provision still requires doctrinal and practical investigation.The determination of "gross negligence" should be justified from three aspects,namely,the form of manifestation,the degree of fault and the subjective state.The wrongful act included in the fifth scope of application should be a violation of family responsibilities and family morality;the degree of fault should reach the severity of the violation of family responsibilities or family ethics and morality requirements;the perpetrator should have subjective fault when committing the wrongful act.In the application of the "other major fault" provisions,the first four legal specific circumstances of Article 1091 should be used as the criteria for identification,and limited interpretation,not arbitrary expansion of interpretation.The seriousness of acts such as extramarital sex resulting in pregnancy,gambling,drug addiction,and fraudulent maintenance has reached the standard of "major fault" and should be included in the scope of "other major fault".In judicial practice,the new fifth "bottom" clause may give rise to problems such as inappropriate forms of discretionary power of judges,inconsistent criteria for determining moral damages for divorce and difficulties in proving them.In this regard,judges should interpret the "other significant fault provisions" in a restrictive manner,determine the standard of adjudication for divorce moral damages,reasonably allocate the burden of proof and make good use of the preponderance of evidence rule.