On The Perfection Of Compensation System For Divorce Fault In China

In 2001 April, marriage law of the people’s republic of china(hereinafter referred to as the “marriage law”), establish The system of compensation for divorce damage, For the first time, establish fault divorce, The no fault party have the right to request compensation for damage. The law list four fault behavior, protect the legitimate rights and interests of the parties to the marriage, to promote social progress and development. However, since the creation of the system, it’s also exposed many problem in the concrete judicial practice. The author combines some specific cases in judicial practice in China, analysis the nature of divorce damage compensation system, constitutive requirements and the problem exiting in the system of compensation for divorce damage, then put forward Improvement suggestions. The paper concludes three parts:The first part of the article is an overview of divorce damage compensation system, mainly introduces the concept, the nature, and the constitutive requirements. the system of compensation for divorce damage means spouse wrong behavior lead to divorce, The no fault party requests compensation, include physical and mental damage. The system established until 2001 "marriage law" amendment in our country. The liability of Divorce damage compensation as a kind of tort liability, not only has the components of the general tort liability, and also has special constitutive requirements.In the second part, the article analysis current legislation of divorce damage compensation in our country. The author starting from specific case, reveal the problem in the practice. "Marriage law" by using the enumeration legislative model, which can’t cover the behavior that exist in the current society for Mistressesr, gambling and drugs, etc, it’s can’t fully safeguard the legitimate rights and interests of the no-fault party in a divorce case. Principle of rules of "Who advocates, who proof" makes the victim’s proof more harder. There is no provisions of the law about the third person destroy the marriage. Damages have no unified standard.In the third part, the article put forward the improvement measures to the list of questions. As the need of social reality, add a fallback provisions applicable to the case of divorce fault, also maintained the stability and long-term of legislation. Reduce the difficulty of the proof, reversion of burden of proof at the proper time; Broaden the main body of request right, increase the third party’s liability to pay compensation, the maximum protection of rights and interests of victims. Clear damage compensation standard, is advantageous for the specific operation case, let the judiciary has relative balance and unity.