Judicial Application Study Of China’s Divorce Financial Compensation System

Housework is an important part of Family Division of labor.Article 40 of the marriage law defines for the first time the value of domestic work and allows the spouse who has more obligations for raising children,taking care of the elderly and assisting the other spouse to work to exercise the right to financial compensation for divorce.Due to the limited subject of application,the application of financial compensation for divorce does not fully achieve the expected goal of the relief of the household.In the era of the civil code,the legislator removed the premise of separate property between husband and wife and added the relevant provision of self-negotiation between the two parties.The civil code expands the subject of claims for financial compensation,based on the reality that most of the property is shared by the spouses after marriage,it is helpful to give full play to the social functions of economic compensation for divorce,such as correcting the imbalance of the couple’s income,maintaining the stability of marriage and promoting the substantive equality between men and women.The value theory of domestic work,gender equality theory and economic compensation calculation theory reveal the reasons why domestic work is neglected and the compensability of domestic work,which is helpful to understand the purpose and significance of legislation.But because the application and standard of divorce economic compensation are too vague,it is very important to combine judicial practice and further perfect the standard.The statistics of court practice is based on the data platform of the legal information database of weike,and searches the relevant cases of financial compensation of divorce by the limited keywords.After that,the data are divided into two types: Judge’s support and non-support request,discussing the judicial application and the standard of compensation respectively.Through data collation,it is found that although the request and application rate of financial compensation for divorce have increased after the introduction of the Civil Code,most of them are the court’s determination of the amount of the parties to negotiate,and when the two parties can not negotiate,the court will rule conservatively and the compensation will be low.The reason is that the application of the rules is limited,the compensation standard is not uniform,the request time is strict,and the parties have difficulties in providing evidence.To solve the above problems,we can draw inspiration from the legal achievements and experiences of countries outside the region.The United States does not have an independent right to claim compensation for domestic work,but it does provide that a spouse who has difficulty in living after a divorce due to performing domestic work may request the other spouse to pay a maintenance,it also provides the court with a reference factor for determining the pension.Germany and other countries have more detailed provisions in the way of payment,payment content,which details the rules of our divorce economic compensation system provides a better model.In our country,the applicable conditions of economic compensation for divorce should be treated differently according to different property systems: if husband and wife practice separate property system,then the judge needs to examine whether the labor of the requesting party has reached the level of "More obligations";in the case of the common property system,the "More obligations" of the parties are obviously higher than the normal level.In the determination of the amount of compensation,mainly clear reference elements for the court to measure the case.In the way of compensation,we should increase the way of payment,enrich the content of payment,and also consider the effect of marital property system on the Payer’s responsible property.In the proof of the parties,in addition to attaching importance to the function of indirect evidence and the use of preponderant evidence,we should also strengthen the obligation of the court to investigate and collect evidence,and refer conditionally to the investigation report produced by the family investigator,to reduce the burden of proof of the parties.