Papers Category:Legal Papers
- Legal Theory Papers
Post Time:2014-2-24 9:45:00
Abstract 2001, China formally established system of divorce damages, but this system in that territory more than a decade, it is their growing doubts, 'who has a spouse living together with others' applies when there is a lot of controversy, the actual application of the effect is not ideal, so divorce damage compensation system has become almost Stronghold mirror month. Narrow for the scope of application of the system of divorce damages, compensation standard uncertainty, the difficulties of proof, the Obligation of Compensation too restrictive, request the main range is too narrow, the sound advice.
Paper Keywords divorce damages the scope of the request body
In this material and temptations of civilization, monogamous by many challenges, bigamy, domestic violence, illegal cohabitation phenomenon exists so that people more and more forgotten 'hold your hand, and grow old with' romantic. When personal choice and traditional thinking, ethics, or open concept generated intense conflicts and abide by traditional morality, to fulfill the legal obligations of the husband or wife spouse but an injury suffered in the marital relationship, and people began to have serious reflections, and The law does not silence, she want with their own strong arm propped up one end of the balance for the victims. In 2001, the newly amended Article 46 of the Marriage Law provisions (1) bigamy; (b) has a spouse living together with others; (c) implementation of domestic violence; (d) abuse, abandonment of family members. one of the situations described above, leading to a divorce, the innocent party is entitled to claim damages. 'This marks China formally established the system of divorce damages. The purposes of this system of damages has more than a decade, the people of this provision is more and more doubts, especially for the second one 'who has a spouse living together with others of the applicable situation, there are many controversial the applicable effect in the actual is not ideal. In this case, divorce damage compensation system has become almost Stronghold, mirror on.
A Divorce Damage Overview
Spouse in violation of the obligations of marriage, the implementation of the statutory purpose of illegal lead to the breakdown of their marriage, Innocent Husband or non-innocent party the right to sue for damages in the event of divorce system, divorce damages system. This system established in the first place: damage fill the innocent party. Sanctions, prevention of illegal activities. And the ultimate effect of the system on a physical level, but also play a role in safeguarding the side of the no-fault divorce.
Divorce damages for violations during the marriage, the infringement of the constituent elements became the basis the tortfeasor for divorce liability. In accordance with the general principles of tort law, divorce damages the constituent elements should include the following five aspects: First, subjective fault. Second, there is the existence of the offense. Objectively caused damage. Fourth, there is a causal relationship between violations and damage to the facts. Fifth, filed a divorce behavior appear in this element is divorce damages behavior and conditions.
Second, divorce damage compensation system, issues related to the analysis of
(A) compensation in divorce scope of too narrow
Enumerated in Article 46 of the Marriage Act can request compensation case, bigamy, cohabitation, domestic violence, abuse and abandonment acts. List format is simple, easy to operate, but obviously not comprehensive enough, is not sufficient to cover all cause serious damage to the behavior of the parties to the marriage, is not conducive to the protection of the legitimate rights of the innocent party should broaden the scope of divorce damages. The reason is: Marriage is the scope of the Civil Code, the fault compensation system is the responsibility of the civil law. In modern tort law, the perpetrator subjective fault, should bear civil liability, irrespective of the concrete manifestation of this fault. Thus, China's divorce damage substance of the claim is the general tort damages, and in certain circumstances (limited to the five cases listed in Article 46 of the Marriage Law) damages.
(B) compensation in divorce standard uncertainty Today, divorce phenomenon intensified, compensation in divorce proceedings also will increase.
However, for the spirit of the determination of the amount of damages and the concrete implementation there are some problems. According to the 'moral damage compensation interpretation of the provisions of Article 8, paragraph 2, of the victim's party infringement suffered mental damage, and the consequences are serious, you can request the people's court to order the infringer to stop the infringement, rehabilitation, eliminating the effects of apology bear civil liability apology, etc., can also request to order the infringer compensation for the moral damages solatium. Shows, for mental damages, the country has taken the compensation for pain relief Only Husband to victims based on in accordance with the doctrine of the parties, to make a claim for the innocent party. Parties do not make a claim for the people's court can not order the offender commitment liability for damages. As for the victims spouse compensation for moral damage to the people's court request, the innocent party is responsible for, and the specific amount of moral damages solatium, by the People's Court in accordance with the facts of the case. Give the judge the discretion to some extent, the lack of this is the law, but also the quality of judges challenges. Reposted elsewhere in the Research Papers Download http://eng.hi138.com
(c) the difficulties of proof
Because fault behavior, such as: who has a spouse living together with others, adultery, has a strong concealment, so the For Marriage Law Article 46 is the second situation, the especially difficult to obtain evidence. Profile <Marriage Law to explain (a) of Article 2, the actual define 'who has a spouse living together with others,' the three aspects: First, the subject must be between spouses and extramarital heterosexual cohabitation, which is the main difference with cohabitation. Birthright not as husband and wife, that is not the name or in the name of other than husband and wife, which with clear boundaries with the fact that bigamy. The behavior sustained, stable living together, which the obvious difference between the behavior of a one-night stand, adultery and other open. The first aspect at a glance, without much to say. After two terms, under the premise of not living together as husband and wife, a spouse how to continuing with the opposite sex, stable common daily diet, in and out, and how to explain their relationship to the outside world? So, only may be hidden, secret, let them see and perceive. Now, the fact of cohabitation the probative evidence nothing more than the following four: (1) the innocent party, that the admission of the spouse living together with others. Innocent party can be in real life, the fact of cohabitation with people consider themselves extremely low probability of such evidence eventually believed the situation will rarely. (2) the social basis of the relevant departments of the management organization certificate issued by the testimony of witnesses or neighbors. The rapid population liquidity makes the disintegration of the country, living in the same cell is quite strange, indifferent neighbors, makes such proof is relatively difficult to obtain, the probative force of relatively weakened. (3) one of the spouses and third party buyers proof. However, a man who wants to hide it from their spouses, living together for the purpose of purchase of real estate is a relatively easy thing, because in the legal community, for the protection of privacy and property rights, to identify and fixed in the form of evidence that a person buyers, it is extremely difficult for ordinary citizens. (4) tracking, photos, unto other methods to master some of the evidence and clues. But such evidence on the one hand there is a conflict with the spouse and the privacy of a third party, on the other hand, due to the continued lack of time, it is difficult to form an effective chain of evidence, and ultimately difficult to be believed, even if they are admissible probative force of the evidence. is not strong.
(D) divorce damages the main obligations too restrictive
'Marriage Law' Article 46 does not explicitly assume divorce damages obligations scope of the subject, that is not clearly pointed out that the innocent party to whom the request for compensation, to whom the exercise of their divorce claim for damages. 'Marriage Law interpretation of (a) 29 clear, should bear the liability the main only innocent party spouse, then the majority of other than the parties to the marriage do not need to bear the corresponding liability, the subject is too restrictive, is not conducive to the regulation other than the parties to the marriage, the behavior of a third party such as the destruction of legally married.
(E) divorce damages the body of the request is too narrow
Explained in accordance with Article 46 of the Marriage Act and Marriage Law> ',' <Marriage Law explains the three 'entitled to divorce damage compensation claims from the main body, and is limited to Innocent Husband. 'Marriage Law' Article 46 (c) and (d) two victims of domestic violence and abuse, and even abandoned the victims not limited to the husband or the wife, children and other family members should also be included. Therefore, only the husband and wife as entitled to damages claims subject is too narrow, the rest of the family interests of vulnerable groups would be difficult to provide adequate protection and relief.
Third, Divorce Damage Compensation System recommendations
(A) for divorce damages for the situation should be taken to summarize legislative form
Damages of divorce damages the essence of general tort damages, rather than the true sense of the divorce damages, and is limited to the enumerated in Article 46 of the Marriage Law in certain circumstances (five cases). The cited legislative mode makes of divorce damages the scope is too narrow, it is difficult to give full play to the proper function of the system.
However, with the continuous development and progress of society, the provisions of the law are bound to be difficult to adapt to the real needs. But also result in statutory or other circumstances. In this case, the stability of the law will be dealt a blow.
(B) to determine the divorce standard amount of damages
How to determine the amount of compensation for moral damage? Only provides a standard reference in determining the compensation for moral damage factors in the explanation of the determination of tort compensation for moral damage Liability of 10, is still relatively principle, did not form a unified calculation method or standard. Thus, the general court for divorce moral damage compensation standards around the fragmented, award determining the amount of compensation.
From foreign law experience, some countries in the spirit of liquidated damages amount, the use of the integrated parties discretionary more reference. In Japan, divorce consolation gold count of the amount of compensation given to a combination of nine factors.
(C) reduce the innocent party the burden of proof, the appropriate use of reverse burden of proof
The existence of the marriage relationship, makes it the corresponding personal relations and property relations of proof more difficult, in the divorce action for damages should be appropriate to reduce the certification requirements applicable to a higher degree cover contingent standard of proof. Departure from the position of the weak or victimized spouse rights protection legislation should be appropriate to relax the conditions, reduce the innocent party the burden of proof can also specify the appropriate burden of proof in the strict sense of the heavier the burden of proof of fault party, in order to achieve restrictions, the purpose of prohibited behavior.
(D) Extended divorce damages the main responsibility
For the main body of the responsibilities and obligations to marriage one of the parties, in principle, the main responsibility, supplemented by a third party. Means that, under normal circumstances, the main responsibility should be limited to between both husband and wife, but as long as the behavior of a third party is intent constitute contributory infringement, with the innocent party parties to the marriage, it should be common to the innocent party responsible for . The main responsibility for damages should be divorce, do some expansion, given the statutory divorce damages against the third party on the circumstances and conditions in order to protect the innocent party the right to spouse.
(E) the establishment of a divorce Compensation Fund The state-funded small part as a major source of funding of the Fund, in addition to pay a certain amount every couple before marriage.
Among the divorce action for damages, the party at fault does not afford the liability or the injured party does not have access to basic compensation, to be subsidized by the Fund.
Divorce damages the one hand, can compensate for the loss suffered by the victim but also to ensure a stable and prosperous life, so that after the divorce, on the other hand, sanctions violations of wrongdoing, so that the corresponding responsibility to bear the legal provisions. Therefore, since since the establishment of the system of divorce damages, in line with the purpose of safeguarding the innocent party and the weak interests, plays a relief for vulnerable groups and punishment for illegal actions, but the system there are still many deficiencies, should continue to perfect, so this active role in protecting the cause of human rights in the legal system to get noteworthy achievements.
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