Research On Judicial Application Of Divorce Economic Compensation

The first regulation of divorce economic compensation was made in marriage law in2001.The purpose of divorce economic compensation is to adapt to the economic and social development,respect the value of housework and maintain the fairness of marriage relationship,and give play to the function of housework compensation and gender equality to relieve one party in the marriage relationship.Financial compensation for divorce has won the praise of many scholars since its establishment.However,there are some problems in judicial practice,such as low application rate and no specific rules for reference.In this regard,Article1088 of the Civil Code of the People’s Republic of China(hereinafter referred to as the Civil Code)has modified the economic compensation for divorce.The provisions of the Civil Code expanded the original conditions for the application of economic compensation for divorce and added legislation that parties can negotiate independently.In order to understand the judicial application of divorce economic compensation,this paper uses Peking University Talisman database to search and sort out the cases related to divorce economic compensation,and finds that there are still problems in judicial practice of divorce economic compensation.Specifically,it includes the limitation of the conditions for exercising the right of claim,the unclear standard for calculating the amount of compensation,the difficulty in the identification and proof of more obligations,and the confusion in the application of other divorce property systems and relief systems.Looking at the world,many countries have established relevant system of divorce economic compensation,which can be studied and learned from foreign divorce economic compensation,and then sum up and analyze the reference significance of legislation of civil law system and common law system to applicable justice of our country.Based on this,some suggestions are put forward to improve the economic compensation of divorce: first,optimize the exercise conditions of the right of economic co-mpensation of divorce,appropriately extend the exercise time of the right of claim,and apply the relevant provisions of the statute of limitations by analogy;Appropriately expanding the subject of application of the right of claim can be analogized to the elderly and non-marital cohabitants.The second is to clarify the method of calculating the amount of divorce economic compensation,clarify the specific calculation standards,reduce the judge’s discretion in the amount of compensation,and delimit the necessaryreference factors.Third,improve the identification and proof of more obligations,clarify the identification conditions of more obligations;Reasonable distribution of the burden of proof,the judge in accordance with their authority to help collect evidence.Finally,to coordinate the application of divorce economic compensation with other divorce property and divorce relief system,distinguish from the application of common property division,clarify that divorce economic compensation is applicable to the special situation where there is no common property to be divided or there is still no reasonable compensation to one party after the division of common property;Distinguish and divorce economic help and divorce damage compensation,divorce economic compensation and divorce damage compensation applied in parallel and divorce economic help as the bottom of the application of rules,coordinate the order of application,avoid double calculation of the amount.