| The country is the foundation of the family,and the family is the foundation of the country.Every family member will get the basic material and spiritual support based on the society in the family.Husband and wife should have the right to get corresponding economic compensation if they pay more for caring for the elderly,children or spouse and providing services and convenience for family life.This is not only a recognition of the value of housework,but also a direct response to the socialist core values.Therefore,article 1088 of the Civil Code stipulates: "if one of the husband and wife bears more obligations in raising children,taking care of the elderly and assisting the other party in work,he or she shall have the right to claim compensation from the other party at the time of divorce,and the other party shall give compensation.Specific measures shall be agreed by both parties;If the agreement fails,the people’s court shall make a judgment.The academic circles generally call it divorce housework compensation system.The compensation system for domestic work in divorce was newly added in Article 40 of the marriage law in 2001,and the second paragraph of Article 47 of the law on the protection of women’s rights and interests also made similar provisions.However,both laws define the premise of divorce housework compensation as " the husband and wife agree in writing that the property obtained during the duration of the marriage relationship shall be owned by each other ",so the implementation effect of the system is not ideal from the 20 years of judicial practice Article 1088 of the civil code cancels the stipulation that divorce compensation for domestic work is only applicable under the agreed property system,expands the scope of divorce compensation for domestic work to the legal property system and the agreed property system,and adds the specific method of compensation to be negotiated by both parties;If the agreement fails,it shall be decided by the people’s court." The principle of autonomy of the will in the field of private affairs shall be implemented with the principle that the parties shall negotiate and decide on their own.However,through the analysis of divorce dispute cases in the era of marriage law and the era of civil code,it is found that "divorce domestic work compensation system" not only fully affirms the value of domestic work,but also exposes the prominent problems in the application process.First,how to identify the "burden more obligations" of housework;Second,how to determine the reference factors of the amount of compensation for housework;Third,how to distribute the burden of proof of housework;Fourth,what kind of payment method and payment period should be adopted for the compensation for housework;Fifthly,article 1088 of the civil code puts the specific measures of compensation for domestic work into the agreement of the parties concerned.If one party violates the agreement on compensation for domestic work reached at the time of divorce,how to remedy the damage caused by breach of contract.The above five problems need to be solved.Therefore,this paper takes the application of the divorce domestic labor compensation system as the research object.Through the design of questionnaire and comparison of 20 typical cases of divorce domestic labor compensation in China judicial document network,the paper finds out the problems existing in the application of divorce domestic labor compensation system in marriage law era and civil code,Combined with the judicial practice of divorce compensation system,the paper analyzes the reasons behind the legal issues,and puts forward suggestions to improve the application of the law of the compensation system,in order to provide an effective reference for the court to hear divorce cases involving domestic work compensation. |
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