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Theory of Divorce Damage Compensation System

Author: LiHe
Tutor: WangYanMing
School: Jilin University
Course: Legal
Keywords: Marriage Law Divorce Divorce Damage Compensation Lack Perfect
CLC: D923.9
Type: Master's thesis
Year: 2013
Downloads: 399
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Abstract


Marriage and family for the Chinese people has always been an important part ofsociety. Every family has its own social responsibilities. Family problems are directlyrelated to social stability and harmony. Now divorce cases are every year on theupward trend, especially in remote rural areas. The divorce cases basically occupyhalf of the country’s cases. Thousands of families are broken up because of thedivorce, with this breakup other problems occur such as, child care, the division ofproperty,and all sorts of other different compensations that tend to add up during thetrial.It is difficult for the judge to correctly grasp the root of the problem at this timedue to the fact that our judicial systems interpretation in this particular field lackssuffiencient understanding.According to the "forty-sixth" marriage law of the people’s Republic of China,and with the relevant judicial interpretations, especially the August13,2011implementation of the interpretation (3) the relevant provisions, the first part of thispaper gives us the basic concept of the divorce damage compensation system and itlet us know the divorce damage compensation system’s function is to fill damage,spiritual comfort, sanctions against offenders, and warning the public. It discusses indetail about the divorce damage compensation of four elements: one is that themarriage law of the subjective fault, the request must befit the fact of damage, thecausal relationship between the two, the fault one breach of marriage. For a specificfault are introduced, especially for the parties to a marriage and extramaritalcohabitation explained third, expand the scope of the object into cohabitation, faultwith same-sex cohabitation or in sexual behavior should be. The second partintroduces the legal reason for divorce damages, specific cases of the statutoryreasons classification and request compensation for divorce damage reason. Fourspecific cases:1. sex outside marriage.2. Any bad behavior that caused familyharm.3.Violating the spouse birth right.4. Do not do family obligations. The thirdpart mainly introduces the related problems of the divorce damage compensationsystem. And it also introduces the defects of the system of compensation in China’s current legislation situation of marriage and divorce damage. This defect is reflectedin seven aspects: the lack of marital damage compensation scope, applicable to thecase is too narrow, the definition is not strict, spiritual damage compensation standardis not unified, the burden of compensation for divorce damage compensationobligation of cohabitation, domestic violence and scope is too narrow, the limitationof action is difficult to grasp. The paper gives the reason for the defects. Especiallyfor the distribution of the burden of proof in lawsuit of divorce compensation liabilityissues, the third can be incorporated into the compensation duty subject, presentsituation and reasons of marital compensation and may give a full explanation. Inview of the above defects in the fourth part of this paper, the author focuses on theanalysis of how to consummate the marriage damages system of our country.Including the improvement of marital damage compensation, compensation scope toexpand the definition of family violence and the standard of living, refinement ofspiritual damage amount, distribution, to improve and enlarge the main obligation ofcompensation to improve the limitation of divorce compensation. The limitation ofaction for damages in general should be the prescription for2years, for the period tobe used except for one year, increase the judge interpretation; discusses the popular inthe society at present "third" can be incorporated into the main obligations of divorcedamage compensation for divorce damage compensation; the burden of proof in theno-fault party, suggested that has the condition to implement presumption of fault, toreduce the victim liability.In addition, the author also talks about the request power main body the divorcedamage compensation and the exercise of the right of the time, and gives suggestionto the judge should be considered the fault party’s behavior, with the time the periodof the behavior, and with the compensation ability and other factors should becombined to determine the specific amount of compensation.

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