On The Compensation System Of Divorce Damage

The instauration of the compensation system of divorce damage is one of the achievements of the act of retouching for marriage. It becomes more perfect divorce aid system together with the economy system of divorce and the aid system for house-working. But it is not enough for the need of the judicature only with the 46th and the other four explanation which appear in the law for marriage. There is also the limitation in the way of making laws. The writer tries to analyze the compensation system of divorce damage to explain the rule of making laws in our country, analyze the limitation and give advice about making laws by comparing with the correlative laws in the foreign country. There are four parts in the thesis, about twenty thousand words.Section one: The definition of the compensation system of divorce damage in the marriage law of our country is that if one of the couple causes divorce by making serious action and make serious damage in mental and matter to the other one of the couple, the unbearable one of the couple has right to ask for the compensation of damage. There are two parts in the traditional marriage law which defines the divorce damage: the damage of the causes for the divorce and the damage of divorce. In fact, the compensation of damage in the marriage law of our country is a kind of the damage of the causes for the divorce. That is to say, if one of the couples'actions is a part of the causing of divorce, the other one can ask for the compensation of damage because of the tortuous action. If the cause of divorce is not the tortuous action, the other one cannot ask for the compensation. The essential attribute of marriage is the social attribute, the character of contract is only one of the essential attributes of marriage. The compensation of damage is a kind of tortious action by the character. It is also the element of making up the tortious action. The function of it includes conciliation, compensation and punishment, prevention the illegality.Section two: The different analysis of asking for the compensation. There are two ways in the field of study: breach of faith and tortious action. Breach of faith thinks that the cause of the foundation for the right of asking for the compensation is against the marriage contact. Then they think marriage is a contact. The theory of this kind of saying is not enough and is not believable. The other saying of it is the tortious action, it is because one of the couples infringes the right of the other one. Spouse has the duty because the marriage. The action of dishonest in the couple causes the breakage of a good, safe and happiness life. If it so, the action must be against the incumbency of marriage and infract the right of the spouse.Section three: The comparison and the lessons between the foreign country and our country about the compensation of damage. From the legislation, there are the correlative laws in Swiss, Mexico and France, especially in France, the laws of it is in detail. Not only in the quantity, but also in the ways of paying are in detail. In Japan they indicate the state by prejudication and the form of theory. But they did not ordain for the compensation of divorce alone, but to the normal rules of tortious laws. In this part, it compares with the system in Taiwan. It is better than Tai in the range of using the act in the mainland. The main body of the duty can ask the third person who destroy the marriage for the compensation. The range of fault includes asking for the adultery, it can give more aids to the victim which compares with the mainland. Section four: It points out the limitation of legislation and gives the suggestions about improving the legislation. To the limitation and the improvement for the compensation of the divorce in our country. First of all is the problem of the main body, in the situation of the third person who destroys the marriage and cause the damage of the marriage, whether this kind of should pay for the spouse of victim. Second is the problem of the unblamable one asks for the evidence. The main reason of getting the compensation is the difficulty of getting the evidence. So it should fit not only for the unblamable one, but for the different treatment of the characters of blaming. They can collect the evidence by the unblamable one, censorate and court. The third is the range of faulty which appears in the 46th in marriage law is too narrow. It cannot include all the actions which cause the serious damage to the people in the marriage. It suggests adding a recapitulative rule:the other important reason of causing the divorce. The fourth is about the range of compensation for the damage of divorce on page 34. Above all, the key point of the compensation for the damage of divorce is in the way of paying. It suggests using the model of the details in the code of country, listing the elements of assured amount of money and the way of paying.