Research On The Application Of Divorce Damage Compensation Law In China

In recent years,the divorce population base is huge,according to the civil affairs development statistical bulletin data.The reason is that behaviors that violate the duty of fidelity of husband and wife,such as adultery,fraudulent rearing,and having children with others during the duration of marriage,are important reasons for divorce.Such behaviors have gradually become the main reason for the no-fault party to file divorce damages in judicial practice.In order to cope with the increasingly severe divorce situation,Article 1091 of the Civil Code has made corresponding adjustment to the scope of application of divorce damage compensation.Besides retaining the original four statutory faults,Article 1091 has added a "other major faults" protection clause.By enumerating and summarizing the legislative mode,it provides a basis for legal adjustment of behaviors violating the couple’s duty of loyalty.However,due to the short period of promulgation and implementation of the Civil Code,the supporting judicial interpretation is not mature,although the divorce damage compensation system began to show its role,but also exposed new deficiencies.This paper takes the legislative purpose of the divorce damage compensation system as the research starting point,conducts an empirical study on the current judicial practice of the system,and analyzes the legislative experience outside the region,aiming at providing some practical reference suggestions for the system.This paper first analyzes our divorce damage compensation system.The concept,nature,constituent elements and function of the divorce damage compensation system are discussed and analyzed to provide theoretical support for the following discussion.Secondly,this paper takes 67 cases of divorce damage compensation concluded after the implementation of the "Civil Code" collected by China Judicial Documents Network as samples for empirical analysis,and focuses on cases of divorce damage compensation for violation of the couple’s duty of loyalty as the object of empirical analysis,and carries out statistical analysis from the aspects of litigation facts and reasons,court support rate,reasons for rejecting the appeal,and judgment support amount.Then through summarizing the statistical data,analyzing the case facts and combining with the court’s judgment results,it was concluded that there were the following problems in the judicial practice of divorce damage compensation cases in our country--narrow scope of subjects,difficulty of proof by no fault party,no specific discretion standard for the amount of divorce damage and lack of judgment basis for "other major faults".Finally,after in-depth analysis of the above problems,the relevant theories of domestic academia and foreign judicial experience are referred to,and corresponding judicial suggestions are put forward:first,by expanding the scope of the subject of rights and obligations to make up for the current situation of the narrow subject;Second,improve the specific discretionary basis of divorce mental damage compensation amount;Third,by lowering the standard of proof,inverting the burden of proof according to the situation to alleviate the no-fault party’s difficulty in proving the dilemma;Fourthly,through judicial interpretation,it is clear that the serious violation of the marital duty of loyalty belongs to "other major faults".