On The Principle Of Taking Care Of The Rights And Interests Of The Innocent Party In Article 1087 Of The Civil Code

With regard to the principle of judgment on the division of joint property between husband and wife,article 1087 of the Civil Code adds the principle of "taking care of the rights and interests of the innocent party" to its predecessor,the Marriage Law.At this point,the principle of taking care of the rights and interests of the innocent party that has been outside the principle of joint property judgment under legal marriage has become a statutory principle,which also highlights the clear position of the legislation on the protection of the innocent party in marriage,which is worthy of recognition.While rejoicing in legislation,it is also necessary to rationally consider the practical significance of the existence of this principle.The divorce damages rule corresponding to Article 1091 of the Civil Code is also a relief rule for the innocent party in marriage,the two functions overlap,and this rule is more specific and predictable in legal effect than the principle of taking care of the rights and interests of the innocent party.Therefore,the necessity of introducing the principle of taking care of the rights and interests of the innocent party into Article 1087 of the Civil Code has become a difficult issue.Thinking about this issue is not only directly related to the degree of judicial protection of the innocent party in marriage,but also related to the dignity of the law used to maintain the order of marriage.Based on the basic point of exploring the significance of the existence of this principle,this paper attempts to analyze the specific functional value of this principle by examining the current situation of the judicial application of this principle,so as to find its normative essence and provide wisdom for the judicial application of this principle.In addition to the introduction and conclusion,this article is divided into four parts:Part I:Formulation of questions.The new legislative logic of the Civil Code to take care of the rights and interests of the innocent party in the judgment principle of the division of joint property between husband and wife is mainly to strengthen the punishment of the innocent party in the marrage while more comprehensively safeguarding the legitimate rights and interests of the innocent party in the marriage.However,this principled provision and Article 1091 of the Civil Code are the legal basis for the remedies of the rights and interests of innnocent parties,which constitutes a competing norm,thus giving rise to a theoretical debate on "same fault,double punishment",which involves not only the justification of the principle of taking care of the rights and interests of the innocent party and the divorce damages rule,but also the issue of whether the determination of the fault elements under the two norms is consistent.If we want to explore the significance of the principle of taking care of the rights and interests of the innocent party,we can not break through from the fault element,but we can only focus on judicial practice to explore the practical value of the principle of taking care of the rights and interests of the innocent party in Article 1087 of the Civil Code.Part Ⅱ:Article 1087 of the Civil Code is the current state of judicial application of the principle of taking care of the rights and interests of the innocent party.A sample of 53 judgments investigated by the author shows that,first,the application of the principle of taking care of the rights and interests of the innocent party is higher than the divorce damages rule;Second,the support rate for the right to claim divorce damages is low and the amount of compensation is low;Third,the right to claim property division is more considerable in protecting the property interests of the innocent party.From the main points of the judgment,first,compared with the right to claim property division and care,the constituent elements of the right to claim divorce damages are extremely strict and the cost of argument is high;Second,there is a difference of opinion on whether the right to claim divorce damages and the right to claim property division and care are supported or not,and whether it constitutes duplicate evaluation.Part Ⅲ:Article 1087 of the Civil Code takes care of the functional analysis of the principle of the interests of the innocent party.A large number of judgment cases show that China’s divorce damages rules are flawed,and the fault element is its shackles,resulting in high cost and low support rate of argumentation of divorce damages claims in practice.In view of the unclear theoretical and practical compensation standards in property damage compensation,and the difficulty of providing evidence;Moral damages compensation is also limited by the provisions of judicial interpretations and the tendency of lower amounts of practical support,so the legal application effect of the divorce damages rule is not optimistic,and this rule is ultimately difficult to truly compensate for the losses of the innocent party.Article 1087 of the Civil Code can be used as a supplementary protection means to the divorce damages rules,which has low cost of argument and large space for interpretation and application,which can more comprehensively protect the legitimate rights and interests of the innocent party.In addition,the principle of care also has its own independent value function,which is of positive significance for promoting the realization of fairness,maintaining social order,and ensuring the freedom of divorce.Part Ⅳ:Article 1087 of the Civil Code takes care of the basic essence of the principle of the rights and interests of the innocent party.This principle is not transparent and detailed in its judicial application,so it is necessary to develop it in a regular manner.This paper argues that "care" is not only reflected in the multi-division of property for the innocent party,but also reflected in the preference of the innocent party to the type of property;As for the criteria for determining the fault of one of the spouses,this article adopts an inclusive violation of marital relationship.The constituent elements of the right to claim property care need to be grasped from the main requirements,the time requirements,and the applicable circumstances.With regard to the "care" criterion,the share of care is subject to the principle of proportionality.In addition,attention should be paid to the harmonization of this principle with other statutory principles,and the principle of childcare should be the primary consideration,followed by the application of the principle of caring for the woman.