Research On Divorce Economic Compensation From The Perspective Of Civil Code

Divorce economic compensation takes fairness,justice and equality between men and women as the value goals,aiming to make the party with more obligations in the marriage and family get due compensation during the divorce,and realize the balance of the interests of both parties during the divorce.my country’s divorce economic compensation was established in Article 40 of the "Marriage Law" revised in 2001,which legally recognized the value of housework for the first time,breaking the traditional concept of considering housework as selfless dedication.However,because the system excludes the common property system from the scope of application and is out of touch with the actual situation in our country,its application effect has not achieved the expected effect,and the purpose of relief for domestic workers cannot be achieved.Article 1088 of the Civil Code expands the scope of application of financial compensation for divorce,and increases the terms of independent negotiation between the parties,which breaks the application bottleneck and further guarantees the freedom of divorce and equality between men and women,especially for women who are in a disadvantaged economic position at the time of divorce.for better relief.Taking gender equality theory,housework value theory and human capital theory as the theoretical basis for economic compensation for divorce,can better understand the legislative purpose and function of economic compensation for divorce,and realize the career development opportunities for the parties who have exceeded their obligations and sacrificed.full compensation.However,empirical research has found that although the application rate of economic compensation for divorce in the Civil Code has increased to a certain extent,it is still in a state of "low application",and when the parties cannot reach an agreement on the compensation method,the judge usually makes a more conservative discretion and the amount of compensation generally lower.The main factors hindering the functioning of economic compensation for divorce are the strict conditions for exercising rights,the lack of compensation methods,and the imperfect rules of proof.Moreover,after the scope of divorce economic compensation is expanded to common property,it is easy to cause confusion between divorce economic compensation and division of common property and other divorce relief systems,which increases the possibility of repeated relief or confusing application.Therefore,it is necessary to further improve the economic compensation for divorce.In terms of application conditions,it is necessary to relax the time limit that can only be applied in the case of divorce,and allow the right to claim financial compensation to be applied to non-marital cohabitation relationships and invalid or annulled marriages by analogy.In terms of compensation methods,calculation standards and reference factors should be clarified,and the amount of compensation should be determined in light of individual circumstances.In terms of the rules of proof,it is necessary to reasonably allocate the burden of proof of both parties,comprehensively consider the difficulty of proof,and give full play to the role of family investigators and judges to detect and reduce the risk of losing the case caused by the difficulty of producing evidence.In terms of the divorce relief system,it is necessary to coordinate the application of divorce economic compensation and other divorce relief methods,distinguish their respective relief functions,and ensure the smooth connection of various relief systems.