| Since reform and opening up,China’s economy has been developing rapidly,so people’s understanding of marriage has unconsciously changed in frequent economic exchanges,and divorce freedom has been deeply rooted in the hearts of Chinese.However,in this process,some people have experienced moral decline and left etiquette,righteousness and shame behind.And behaviors that seriously damage mutual affection and marriage and family relations have begun to prevail,such as having an affair,keeping a lover,having children out of wedlock,etc.disrupting the social atmosphere and causing physical,mental,and even property harm to the other partner in the marriage.Therefore,some scholars have proposed to take care of the innocent party when dividing community property of the couple in divorce cases since 1980 s.In the21 st century,China’s economy is growing more quickly,and the forms of joint property of the spouses are becoming more abundant,such as enterprises,shares,wealth management products,so the division of joint property of the spouses has become an important step in divorce cases.At the same time,the breakdown of marital relations due to faults is becoming increasingly common,and the application conditions of the divorce damage compensation system that added in the 2001 amendment are relatively strict,resulting in a large number of the no-fault party cannot protect his or her legitimate rights and interests in divorce cases where one spouse is obviously at fault.Obviously,the deficiencies in the system above exempt the wrongdoer from punishment in the marriage relationship to some extent.In order to maintain the stability of marriage and family,it is necessary to punish the party in fault in marriage,comfort the no-fault party when dividing the joint property of the spouse,that is protecting the rights and interests of the no-fault party by giving he or her more property,so the principle of taking care of the no-fault party was officially written into the Civil Code in 2020.However,"taking care of the no-fault party" is only a principle on dividing the joint property of divorced spouses,so various problems have emerged in specific application due to the lack of judicial interpretations or guiding documents,resulting the application of this principle varies in different regional courts,so it is theoretically and practically significant to study the problems existing in the application of this principle and propose optimization solutions of high pertinency.To explore the above problems,the thesis introduces the domestic and foreign research status,innovation points,and ideas and methods of taking care of the no-fault party;then analyzes the meaning of "fault" in the principle of taking care of the no-fault party from the perspectives of textual interpretation and system interpretation,and attempts to determine what "fault" means and its scope,that is,"fault" in marriage refers that the parties know that their behavior will damage the marital relationship but still act,or deliberately carry out specific acts to destroy the marriage,and such acts obviously violate the spouse’s rights of the no-fault party,and cause actual mental,physical and property damage.Then,with reference to the constructive factors theory,the application conditions and reasons for the obstruction of the principle are analyzed,and the reasons for obstruction include counterbalance of negligence,enticement of the no-fault party,informed consent of the no-fault party,etc.The article also discusses the significance of applying the principle,such as protecting specific identity relationships formed as a result of marriage,making up for physical or property damage suffered by no-fault parties,punishing the wrongdoer who breaks down the marriage due to his or her faulty acts,safeguarding social stability,and promoting fairness and justice.On this basis,the thesis studies the application of the principle of taking care of the no-fault party when dividing the joint property of the spouses in cases where divorce is caused by the fault of one party from 2021 to 2022(that is,after the implementation of the Civil Code),and discusses and analyzes the sample cases from the following sorts: violating the fidelity obligation of marriage,infringing on the other’s property rights,and infringing on the other’s physical rights.Next,the problems and dilemmas existing in relevant samples analyzed in Chapter 3 are summarized and analyzed,and the thesis concludes that there are five main problems in such cases: the scope of fault is ambiguous,the standard of testification is too high and onus probandi is unreasonably distributed,the type and severity of one party’s fault and the inclination of property division are not positively correlated,and similar cases are judged differently-the proportion of property division varies by region,and some judgments violate sex equality rule.Then,corresponding suggestions are put forward for solving the problems existing in the application of the principle in the above-mentioned property dispute cases,mainly including clarifying the scope of application and standards,adjusting the standard of testification and the distribution of onus probandi,formulating a "fault" classification system and reference standards for property division by region,and adhering to sex equality rule in judicial decisions;at last,the thesis reiterates that the principle of taking care of the no-fault party is another way of punishing the guilty party,comforting the no-fault party,and safeguarding the rule of law along with the divorce damage compensation system.By formulating a scientific and reasonable "fault" classification system and regional reference standards for property division,it can appropriately limit the discretion of judges and reduce bending the law for personal gain on one hand;and on the other hand,it can also narrow the gap between different regions in the protection of no-fault parties,which is more conducive to safeguarding the legitimate rights and interests of no-fault parties and judicial authority. |
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