| According to the statistics of the Civil Affairs Bureau,the divorce rate in my country has continued to increase in recent years.Among them,one-night stands,cheating,concubines,and other acts of loyalty during the marriage have become one of the important reasons for divorce,and it is also the damage of divorce in judicial practice.One of the main reasons for the suit for compensation.In the era of marriage law,Article 46 of the Marriage Law is too on the divorce damage compensation system,and the enumeration legislation makes the application of divorce damage compensation too narrow,and many violations of the husband’s duty of loyalty are excluded from the scope of divorce damage compensation.Resulting in low court support for such cases in practice.Therefore,since the establishment of the legislation,the application rate of the divorce damage compensation system in judicial practice has been low,and it has not fully played its due role and value.The formulation and promulgation of the "Civil Code" further improved the divorce damage compensation system.Article 1091 of the "Civil Code" made a major change in the scope of application of compensation for divorce damages.In addition to retaining the four statutory faults in the"Marriage Law",a "significant fault" clause was added.However,due to the short promulgation of the "Civil Code" and the imperfect judicial interpretations,there are still many problems in judicial practice when the court hears divorce damages cases in violation of the duty of loyalty of husband and wife.Firstly it analyzes the academic disputes on the judicial application of the duty of loyalty of husband and wife,and clarifies the application status of the duty of loyalty of husband and wife in the compensation for divorce damages.Then,it focuses on exploring the problems existing in judicial practice in judicial practice under the background of the implementation of the "Civil Code" when courts try divorce damage compensation cases on the grounds of violating the duty of loyalty of husband and wife.This article takes the divorce damage compensation cases concluded after the implementation of the Civil Code published on the China Judgment Document Network as an empirical analysis sample,and focuses on divorce damage cases in violation of the duty of loyalty of husband and wife as the research object,and then makes a statistical analysis from the perspectives of litigation facts and reasons,court support rate,support amount,and reasons for rejection.Through the statistical analysis and research of the sample cases,the problems in the trial practice of such cases after the implementation of the "Civil Code" were found.Then,combined with the facts of the case and the court’s trial judgment,it explores the three major problems existing in judicial practice in cases of divorce damages in violation of the duty of loyalty of husband and wife.These three problems are that it is difficult for the innocent party to provide evidence,the definition of "other major fault" is unclear,and there is no specific standard for the amount of compensation for mental damage.Finally,after comparing and studying the relevant legislative and judicial experience outside the territory,referring to the domestic academic research,after an in-depth analysis of the problems,the corresponding solutions are proposed.The first suggestion is to reduce the difficulty of proof by lowering the standard of proof and authenticating indirect evidence.The second suggestion is that the judicial interpretation made it clear that the violation of the duty of loyalty of husband and wife is "other major fault".The third suggestion is to improve the specific discretionary basis for the amount of compensation for divorce spiritual damages in violation of the duty of loyalty of husband and wife.This article hopes to contribute to improving the quality and efficiency of judicial trials in divorce damage compensation cases and maintaining judicial justice through the suggestions. |
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