Study On Divorce Damages Compensation System Of PRC

The stipulation of brand-new system of divorce damages compensation is a result of the 2001's amendment of the Marriage Law. But it can not satisfy the judicial actual practice. And it's also has some defects in legislative technique. In this essay, the author tries to systematically elaborate the system of divorce damages compensation of our country.It has around thirty thousand words and includes four parts.The first part is about the theoretical basis of divorce damages compensation. In this part,the author introduce the definition and history of the system of divorce damages compensation, analyses the legal character of the system of divorce damages compensation is compensation for infringing the right of spouse. Then the author discuss"right of spouse", define what is"right of spouse"and its content. Then the author makes sure the establishment of the system of compensation for damages caused by divorce meets our country's current need. It corresponds with basic value that the law is after.In the second part, the author analyses the legal application of the system of divorce damages compensation. First of all, the author has analyses the constitutive requirements of divorce damages compensation is: illegal act; fact of damage; subjective fault; and causality of subjective fault and fact of damage. And its also have two special constitutive requirements: divorce result; must be bringed by the inoffensive spouse part who has no subjective fault. Then the author explains elaborately the four conditions to apply the divorce damage compensation: bigamy; have the spouse who cohabits with other person; enforcement family violence; ill-treat or abandon family member. Finally, the author discourses upon how to exertion the right of claim of divorce damages compensation from 4 aspects: the claim part; time to claim; the court that accepts the case; the burden of proof. This part embodies the great efforts of the author on the judicial practice after the amendment of the Marriage Law, and includes much analysis about the 46th clause of the new Marriage Law by comparing typical cases.The third part is about the in point range of divorce damages compensation, and the forms of duty of divorce damage compensation. The author affirms that divorce damages compensation includes not only physical damage compensation but also mental damage compensation. And physical damage compensation includes property damage and personal injury. And property damage includes direct-property damage and indirect-property damage.Finally, in the last part, basing on much judicial practice, the author talks about some defects of the system of divorce damages compensation, then advance corresponding legislative suggests: The in point range of divorce damages compensation,the question of the third party,and weather it can be extended of the rang of application of damage compensation; the duty to put proof; the confirmation of damage compensation sum. In this part, the author, combining many cases, brings forward his question to some existing rules, not only pinpointing the problem in judicial practice, but also posing suggests to perfect our later marriage legislation.