Some views on the damage compensation system in China's marriage law

Article 46 of the Marriage Law defines the compensation system for divorce fault damages, which further protects the legitimate rights and interests of marriage parties, provides a legal basis for judicial organs to adjudicate related cases, and further improves China's marriage and family legislation. However, there are still some problems in this system in practice, which makes the protection of the legitimate rights and interests of marriage parties insufficient. This paper discusses and discusses the foundation, significance, constituent elements, applicable conditions, the scope of the subject of compensation obligation and the principle of liability in actual operation of the marriage damage compensation system, and puts forward some practical problems and my own views and suggestions.

Keywords: marriage contract damages, the burden of proof for marriage damages

(A) to establish the basis of marital damage compensation system

Some scholars believe that the foundation of establishing marital damages system comes from tort damages in civil law. The act of destroying the marriage relationship is regarded as the responsibility of infringing the right of reputation and is treated as the crime of infringing the right of reputation. There are also views that the destruction of marriage relationship should be recognized as a civil liability for infringement of spouse rights and compensation for mental damage should be implemented.

This paper holds that the foundation of establishing marital damage compensation system lies in the contractual nature of marriage.

For a long time, the theory of marriage contract has not been adopted in China. Traditionally, "marriage is the spiritual combination of men and women" and "love should not be measured by money". Some people who oppose the establishment of marriage damage compensation think that the damage compensation system violates the ethical essence of marriage, and it is inappropriate to commercialize marriage relations and solve moral problems by law. In a word, this is because different views on the nature of marriage lead to different conclusions. Marriage is a civil contract between men and women for the purpose of living together, with personal and property rights and obligations as its content. In other words, the essence of marriage is a contract, which emphasizes not only rights but also freedom. Therefore, we can say that marriage means freedom. The legal freedom of marriage system is based on freedom of contract, including freedom of marriage and freedom of divorce. The adoption of marriage registration doctrine in China shows that marriage contracts must be concluded in strict accordance with the marriage law. Its content is the marital rights and obligations enjoyed by both husband and wife. This right and obligation includes two aspects: personal and property; Moreover, both parties to a marriage can choose divorce to terminate this right and obligation, that is, to dissolve the engagement. All of the above can reflect the contractual nature of marriage. The system of divorce damages embodies the essence of marriage "contract" from the perspective of marriage rescue measures. There is no compensation system for divorce damages in the Marriage Law before the revision in China. However, foreign legislation established this system hundreds of years ago. For example, 179 1 French Constitution, French Civil Code and Mexican Civil Code have all established this system.

The contractual nature of marriage has been imprisoned in China for a long time. In feudal society, the status of husband and wife in marriage and family is extremely unequal, and the status of women is extremely low. For a long time, people seem to admit that marriage is a contract, as if it were a shameful transaction. Therefore, it should be said that this concept avoids the true nature of marriage relationship and limits the implementation and realization of the principle of freedom of marriage. Therefore, women basically have no legal rights and interests in marriage, let alone the protection of legal rights and interests when marriage breaks down. In recent years, with the deepening of people's concept of "contract", the understanding of the nature of marriage has become more and more clear. In addition, this understanding has been reflected in the marriage law. China's current marriage law has established a damage compensation system based on the nature of marriage contract. Especially according to Article 46 of the Marriage Law, the party at fault has seriously violated the obligations of the marriage contract and should be liable for damages.

(B) "Marriage Law" to establish the significance of the damage compensation system

200 1 The significance of establishing divorce damages compensation system in China's Marriage Law can be summarized as follows:

(1) The establishment of divorce damages compensation system is the need to protect the legitimate rights and interests of one party to a marriage in the current social situation, which is conducive to warning and punishing the wrong parties' behaviors such as bigamy, cohabitation, adultery, extramarital love and domestic violence.

(2) The establishment of divorce damage compensation system is the need of public order and good customs, and the need of a harmonious socialist society. Nowadays, people are increasingly indifferent to keeping mistresses, adultery and concubinage, and the social atmosphere is gradually declining. We should use legal means to improve moral awareness. Socialist spiritual civilization should establish the concept of advocating legal marriage and moral family.

(3) The establishment of divorce damage compensation system is the need to improve the marriage and family law and strengthen the civil legal system. Family is the cell of society, and the stability of marriage and family is one of the important foundations for social stability and the establishment of a harmonious society.

(4) The establishment of divorce damage compensation system is the need for judicial organs to abide by the law and pursue offenders, and it is also the inevitable requirement for realizing a society ruled by law. Judging from the previous judicial practice, because the original marriage law of our country did not stipulate the compensation system for divorce damages, we can only operate according to the principle of taking care of the innocent party when dividing the same property. In the case of little or no property, it is impossible to apply the principle of care and to give fair and reasonable protection to innocent victims; At the same time, illegal acts have not been dealt with and punished in time. Therefore, it is indeed very important for judicial organs to abide by the law and the system of divorce damages.

Some people who oppose the establishment of this system believe that the damage compensation system violates the ethical essence of marriage, while punishing the third party is to interfere with the private emotional world by law. Moral problems can't be solved by legal means, which easily leads to the bad atmosphere of invading others' privacy, catching prostitutes, judicial intervention in marital fault investigation, difficulty in obtaining evidence, high litigation cost and difficult operation. The author believes that marriage is based on the feelings of both husband and wife, but the maintenance of marriage requires not only the positive factors of feelings, but also the intervention of legal system. Marriage law has ethical aspects, but it is more of a legal system. As mentioned above, China adopts marriage registration, and the marriage contract must be concluded in strict accordance with the provisions of the Marriage Law. It is not only related to the huge interests of the parties, but also related to social interests, and should be strictly protected by law. The investigation is difficult and the litigation cost is high, which cannot be the reason to oppose legislation. The water conservancy project of the Three Gorges Dam is difficult and costly. Why should the country be built? Because it has considerable social benefits after completion. Then the establishment of damages in marriage law has social and long-term spiritual benefits!

(3) Elements of damage

According to the legislative spirit of the Marriage Law, the constitutive elements of the damage compensation system are as follows:

The actor is subjectively at fault. This is the subjective element of damages, which requires one party to be subjectively at fault. If the actor is subjectively innocent, he will not be liable for compensation.

This behavior is illegal. This is the objective behavior element of damage compensation, that is, the behavior of the wrong party violates the provisions of the marriage law or the requirements of the marriage contract for marriage obligations.

The fact that the claimant has suffered damage. This is the objective consequence element of damage compensation, that is, the party entitled to claim must have damage facts, including property damage and mental damage. In fact, only when the innocent party has the fact of damage can it enjoy the right to claim damages.

What needs to be emphasized and supplemented is that, generally speaking, compensation for mental damage should have the fact of mental damage. Because the spirit itself is abstract, it is more difficult to ask it to be expressed in the factual state required by law. In order to solve the objectivity of mental damage, some scholars and practitioners divide mental damage into "nominal mental damage" and "confirmed mental damage". The so-called "nominal mental damage" is also called "formal mental damage". As long as the victim has a clear performance of the infringer's infringement, according to the general level of understanding, it is considered that the victim does have the fact of suffering mental damage, and the law infers the authenticity of this damage. The so-called "confirmed mental damage" is also called "empirical mental damage". The law cannot infer whether the victim has the authenticity of mental damage. The victim must give evidence to prove whether there is psychological, physical and mental harm. The author believes that the fact of mental damage mentioned in the general elements should be understood as "nominal mental damage". As long as there is an act that harms marriage and family, it is presumed that the injured party has mental damage without supplementary evidence.

There is a causal relationship between wrong behavior and damage facts. This is the element of causality of damage compensation, that is, there is a legal causality between the illegal act and the damage fact of the innocent party.

(4) Applicable conditions of damages

This paper has always emphasized the compensation for damages in marriage, not in divorce. This is one of the important viewpoints of this paper-establishing an independent compensation system for marital damage and supporting marital damage compensation.

The applicable condition of Article 46 of the Marriage Law is that "the innocent party has the right to claim damages in case of divorce under any of the following circumstances ..." This should be understood as a prerequisite for claiming damages.

Then, if one party to the marriage doesn't ask for a divorce, can't he ask for damages? Can it be said that if the innocent party wants to get compensation, it must be at the expense of divorce? The author believes that this provision undoubtedly forms a "compulsory distribution relationship" between the right to claim for divorce and the right to claim for damages. If one party of the marriage wants to claim damages, then divorce becomes a kind of "forced collocation", otherwise there is no way to pay damages. However, the claim for divorce and the claim for damages are two fundamentally different rights. The claim for divorce is to claim the dissolution of the relationship between husband and wife based on the breakdown of marriage, and the claim for damages is to claim the legal protection of the injured rights and interests based on the illegal acts that violate the obligations stipulated in the marriage law. Therefore, the claim for damages in the marriage law should be regarded as an independent claim, and the restrictions based on divorce should be abolished and the claim for damages in marriage should be supported. Some people may think that this compensation is meaningless. Sentences are family property. But the author believes that this definition is meaningful. It can improve people's attention to family and marital obligations as a whole and play a warning role. Punishing and educating the wrong party not only embodies the power of law, but also helps the wrong party to repent, make it "turn back to the shore" and promote family and social stability. It is unfair to the innocent party if divorce must be at the expense. The property or property right obtained by the innocent party due to marital compensation should also be recognized as his personal property. Family is the constituent cell of society, and its stability is related to all aspects of society to some extent. If this independent claim for compensation is established, its social and spiritual benefits will be considerable in the long run.

(V) Definition of the scope of the subject of the obligation of compensation for damages.

The definition of the subject of responsibility in Article 46 of the Marriage Law is rather vague. From the analysis of regulations, the obligor for damages is limited to the scope of both husband and wife, which affects the protection of victims' rights. In fact, the third party at fault is exempted from joint liability. Can the innocent party claim compensation from the "third party"? I think so, too. The third party's involvement in other people's marriage is the destruction of the marriage system protected by the current law, which is essentially the same as other illegal acts, not just a moral issue. The law must make a negative evaluation and take corresponding measures to stop and sanction it. Because bigamy, cohabitation and adultery between one spouse and a third person outside marriage are serious illegal acts, and if the wrong party is at fault, most of the third people are at fault and should be liable for compensation. However, the innocent party should not claim rights from the third party in divorce proceedings, but should file a tort lawsuit alone; If marital compensation is allowed as mentioned in the fourth point of this article, the innocent party may bring an infringement lawsuit to the infringer with the wrong spouse and the third party as * * *. Some experts and scholars say that "punishing the third party may lead to the practice of catching rape, which is difficult to operate in the judiciary." The author believes that as long as the third person interferes with other people's families and has major faults, such as bigamy, concubinage and long-term adultery, and leads to divorce, it should be subject to civil sanctions, that is, it should bear civil liability for compensation. "If the circumstances are serious, criminal responsibility shall be investigated and civil liability shall not be exempted." Investigating the third party's responsibility embodies a legislative value orientation and safeguards public order and good customs. When the problem constrained by morality goes beyond the bottom line of social civilization, it needs law to safeguard its justice and standards. If the law turns a blind eye to the major fault of the third party and only punishes the fault party of divorce, it will not achieve the expected functions of prevention, warning, education and punishment. Moreover, it is also the common law of most countries to establish a system of claiming damages from a third party for marital damage.

(VI) Problems in the burden of proof in the system of compensation for marital damage.

According to the provisions of Article 46 of the Marriage Law, it is the "innocent party" who has the right to claim damages. It means that the principle of liability for damages in marriage law is the principle of fault liability, and fault is the ultimate element of responsibility. So the burden of proof falls on the innocent victim. Under the simple application of the principle of fault liability, it is quite difficult to ask the claimant to bear the burden of proof in the field of marriage and family. Article 2 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China (hereinafter referred to as "Several Explanations") stipulates: "The situation of' a spouse living with others' as stipulated in Articles 3, 32 and 46 of the Marriage Law means that one spouse is of the opposite sex outside marriage and does not live together continuously and stably in the name of husband and wife." How does the claimant prove the continuity and stability of this relationship between the spouse and the opposite sex outside marriage? Some claimants have no choice but to hire private detectives or simply act as private detectives themselves, hoping to realize their claims through these means. However, conflicts of rights and interests are often caused by improper collection and application of evidence. For example, the publication of rape photos may lead to the conflict between the legal protection of one spouse's claim for damages and the legal protection of the third person's right to privacy; The fact of cohabitation is exaggerated, which may lead to the conflict between the legal protection of one spouse's claim for damages and the legal protection of the third party's reputation right. Of course, quite a few claimants simply cannot provide evidence in this regard. In all cases, it may lead to the situation that the claimant can't realize the right of claim because of insufficient evidence or lack of evidence, and the responsible party can escape the punishment of the law. The judges of the court know that there are infringement facts, but they suffer from insufficient evidence and cannot give corresponding civil remedies to the infringed civil rights and interests. In this situation, the legislative value established by the damage compensation system and its dialysis legislative spirit have disappeared.

The author believes that the protection of the legitimate rights and interests of the injured party will be strengthened by adopting the presumption of fault in time and inverting the burden of proof.

If we can do this, there are quite a few problems that can be solved. "We advocate that China's civil law should learn from France's experience in no-fault liability or special tort situations. The infringer infringes on the material personality right of a natural person, regardless of whether the infringer is at fault or not, he should be liable for compensation for mental damage. " In other words, when the victim's material personality right is violated and the victim requests compensation for mental damage, fault liability or no-fault liability can be applied. It is precisely because the presumption of fault comes from the consideration of protecting the interests of the victims, and its main purpose is to provide relief for the victims, so the author thinks that the principle of presumption of fault can and should be introduced into the damage compensation system in the field of marriage and family. For example, in the case of bigamy, cohabitation with the opposite sex outside marriage, etc. If the innocent party requests compensation for mental damage, it shall adopt the principle of presumption of fault, and the innocent party shall prove that it is innocent of the consequences of mental damage.

As mentioned earlier in this paper, "the law only regards marriage as a civil contract", and the establishment of the damage compensation system of marriage law stems from the "contract" essence of marriage, not to mention the marriage and family relationship is a civil legal relationship with strong feelings, which has strong ethics and complexity and may cause unexpected new situations and new problems at any time. The principle of presumption of fault is also helpful to adjust the new situations and problems in this kind of marriage and family in time. At the same time, it also strengthened the protection of innocent victims.

Based on the discussion of the first six aspects, the author has the following views and suggestions on the marital damage compensation system: the establishment of the marital damage compensation system stems from the "contractual" nature of marriage; The establishment of this system is the need for the current concept of marriage and family in China to "decline in the world" and restore moral and ethical public order and good customs; Mental damage in marriage law should be understood as "nominal mental damage"; Damages should not be limited to the conditions of divorce, but also extended to the process of marriage; The obligor for damages should include the spouse at fault and the third party (in what name does the claimant appeal); Appropriate and timely use of the principle of presumption of fault, increase the protection of innocent victims.

References:

(1) Tort Law of Civil Law, edited by Wang Liming, Renmin University of China Press.

(2) Research on Civil and Commercial Law edited by Wang Liming.

(3) Lin Xiuxiong's Research on Marriage and Family Law, China University of Political Science and Law Press.

(4) Li Yinhe and Ma Yinan, editor-in-chief of Debate on the Amendment of Marriage Law, Guangming Daily Press.

(5) Identification and evaluation of the amount of compensation for mental damage, edited by Guan Jinhua.

(6) Yang Suiquan's Introduction to the New Marriage and Family Law, Law Press.

(7) Yang Dawen, editor-in-chief: Kinship Law, Law Press.

(8) Li: "Comment on the New Marriage Law"