Starting with the adjustment scope of mental damage compensation, this paper discusses the theoretical possibility and practical necessity of divorce mental damage compensation, divides divorce mental damage into separation mental damage and divorce mental damage, and focuses on the legal inheritance, rights and obligations subject, assignment and inheritance of creditor's rights, compensation principle and application scope of divorce mental damage.

Keywords: mental damage, divorce mental damage, mental damage

For thousands of years, marriage has been based on economic status and social status. It was not until the last century that love became the basis of marriage. However, the addition of emotional factors and overly romantic emotional pursuit in marriage increase the unstable factors in marriage; In addition, the development of economy and the rise of industrialization and urbanization have increased the possibility of changes in people's living environment, and people's concepts, desires and pursuits are constantly changing. According to a random sampling survey conducted by Li Yinhe in Beijing, the proportion of people who have had extramarital sex is quite high, and people's attitude towards extramarital sex is very strict. [1] Therefore, in recent years, the divorce rate in China is increasing year by year, and the reasons for divorce are becoming more and more diversified. Alcoholism, abandonment, lack of affection, disharmony in sexual life, mutual boredom and a series of differences in lifestyle and values can all be reasons for divorce. Some scholars in the west divide divorce into benign divorce and non-benign divorce according to the different reasons and purposes of divorce. [2] But whether it is a benign divorce or a non-benign divorce, as long as it causes damage to the other party, we should consider giving relief from the system. Especially in the case of non-benign divorce, when the marriage relationship breaks down due to one party's major fault or even illegal behavior, one party often suffers great pain and is severely devastated physically and mentally, so the compensation for divorce mental damage has become a prominent problem. However, China's Marriage Law does not stipulate damages in divorce proceedings, nor does the General Principles of Civil Law and judicial interpretation, and there is no way to seek relief for mental damage. Although some scholars in China's legal circles have mentioned that China should establish a divorce compensation system, there are few papers devoted to divorce compensation for mental damage. Therefore, at a time when China's new marriage and family law has formed an expert draft, the Civil Code has been put on the agenda, and the voice of establishing compensation for mental damage is getting higher and higher, the author tries to write an article on this issue, which is superficial and hopes to have certain practical significance.

Research on the scope of compensation for mental damage

As early as the codification period of the development of Roman law, the germination of mental damage compensation system appeared. Scholars in China believe that the so-called insult has a wide range of meanings, which is not only an insult to people's freedom, reputation, identity and personality, but also includes all acts that cause harm and humiliation to people's spirit and body. Later, the magistrate allowed the victim to file a "lawsuit for damages" and set the amount of compensation. In the imperial era, the amount of damages was completely determined by the magistrate according to the nature of the damage, the location of the victim, the damage situation and the identity of the victim. [3]

The formation of modern compensation system for mental damage develops along two parallel routes. One route is to imitate the practice of tort evaluation in Roman law and establish civil law protection for the spiritual personality right of civil subjects; Another way is the civil law protection of material personality right. After Roman law, there began to be a method to compensate the non-property losses caused by the violation of the rights of body, health and life, that is, the system of personal injury consolation money. [4]

The establishment and development of compensation for mental damage in the modern sense was in the 20th century. As early as the formulation of the Swiss Civil Code (promulgated in 1907 and implemented in 19 1 1), there was a debate about whether the compensation for mental damage was affirmative. The press is afraid of restricting the freedom of reporting and increasing the burden of litigation. Some scholars in Germany have also warned that mental damage will commercialize personality, so they have adopted a restrictive approach, which is limited to the damage of rights such as name rights and can claim compensation. Restrictism is the basic doctrine at the beginning of civil law system. In the Anglo-American legal system with case law as the main legal source, the types of rights for compensation for mental damage confirmed by case law are gradually increasing, which is actually non-restrictive. [5] Non-restrictive doctrine has become a trend, and countries of civil law system have adopted this theory respectively. Mental damage has involved many aspects, such as the right to name, reputation, honor, portrait, privacy and chastity. The mental pain caused by property and personal injury can also claim material compensation. [6] Chinese scholars generally believe that mental damage is relative to material damage, including mental pain and loss of spiritual interests. Mental pain mainly refers to the physical and psychological pain suffered by the obligee because of the violation of his personality rights, which leads to obstacles in his mental activities or makes people feel angry, desperate, fearful, anxious and uneasy. The loss of spiritual interests means that the personal interests or identity interests of the obligee are damaged. [7] Some scholars believe that compensation for mental damage is not limited to non-property damage, but also includes mental damage caused by property damage, and is not limited to mental or physical pain. Sometimes the spiritual rights and interests are damaged, and the victim can claim compensation even if he doesn't feel pain. [8] The author further believes that mental damage is not limited to mental pain caused by tort, but also includes mental damage caused by non-tort such as divorce.

Second, the theoretical basis of divorce compensation for mental damage

(A) from husband and wife integration to husband and wife individualism

With the development and change of society, the status of husband and wife in the family has also experienced a process of development and change. From the legal point of view, this change has gone through two periods:

1, the integration period marked by husband's right, that is, after marriage, men and women merge and husband and wife's personality absorbs each other, but in fact, the wife's personality is absorbed by her husband. After marriage, the wife has no right to name and property, no capacity for action and no capacity for litigation, and everything is at her husband's disposal. This model is mostly adopted by ancient law and medieval law.

2. The period of husband and wife individualism marked by the equal legal status of husband and wife. It means that after marriage, both men and women maintain their independent personalities, enjoy certain rights and obligations, and have their own property rights and capacity, which embodies the legal equality between men and women. Most modern countries adopt this model in legislation.

It is precisely because the relationship between husband and wife is based on the independence and equality of personality, and each husband and wife has independent personality and property ownership ability that one party may infringe on the other party, so the injured party may ask the other party to pay damages. [9]

(b) From responsible divorce to broken divorce.

With the great change of the traditional concept of marriage, divorce is no longer so unacceptable, and the legislative development trend of divorce law in contemporary countries all over the world has also developed from responsibility to rupture, and the restrictions on divorce have been greatly reduced. From fault divorce to no-fault divorce, society and law are more and more tolerant of divorce. According to the basic requirements of the no-fault divorce law, as long as the marriage relationship has really broken down, no matter whether there is fault or not, either party can be allowed to divorce. Any fault of the party who caused the breakdown of marriage relationship should have nothing to do with divorce; Even if one spouse is completely innocent and has not violated his marital obligations, the law can still force a divorce against his will. This will increase the possibility of mental damage to one spouse, thus expanding the scope of application of mental damage compensation. If the marriage unfortunately breaks down irretrievably, then the superficial legal shell should be disintegrated, but fairness should be maintained to the maximum extent and pain and trouble should be minimized. For the damage of spiritual rights and interests, the divorce compensation system for mental damage is undoubtedly a good way of relief.

(3) The compensation system for divorce mental damage will not lead to the commercialization of marriage and personality.

Some people are opposed to the system of divorce damages, especially the system of divorce mental damages. They believe that allowing damages will commercialize marriage and open the door for high-priced divorce, so it is more appropriate to adjust marriage relationship with moral norms. However, due to the underdeveloped social productive forces in China, the social economy and various social factors derived from it restrict the marriage relationship in China to a great extent. Marriage is mainly a combination of life and interests. It is obviously impossible to protect the interests of the parties to the marriage relationship if the marriage relationship is adjusted only by moral norms. There are personal interests in the relationship between husband and wife. Since the infringement of other personality rights in civil law will not lead to the commercialization of personality, divorce damages will certainly not lead to the commercialization of marriage. On the contrary, the establishment of divorce damage compensation system is conducive to preventing or reducing the wrong behavior during the marriage, ensuring the stability of marriage, improving the quality of marriage, further improving the parties' awareness of personality independence, democracy and equality, and enhancing their awareness of rights, which is the construction of socialist spiritual civilization and democratic politics in China. [10]

Thirdly, the significance of establishing the compensation system for mental damage caused by divorce.

(1) Improve the legal system.

In fact, China's Constitution and the General Principles of Civil Law clearly stipulate the protection of citizens' spiritual rights. Article 38 of the Constitution stipulates that "the personal dignity of the people and citizens of China is inviolable. It is forbidden to insult, slander and frame citizens in any way. " Article 10 1 of the General Principles of Civil Law stipulates that "citizens and legal persons enjoy the right of reputation, and their personal dignity is protected by law. It is forbidden to damage the reputation of citizens and legal persons by insulting or defaming. " Article 120 also stipulates that "if a citizen's right to name, portrait, reputation and honor is infringed, he has the right to demand to stop the infringement, restore his reputation, eliminate the influence, make an apology and demand compensation for losses." Scholars believe that the compensation for mental damage should be interpreted restrictively, that is, the compensation for mental damage should be strictly limited to the above four kinds of tort. It seems that there is nothing wrong with the stability of the law, but it is at the expense of the appropriateness of the law. The author thinks that if we combine the stability and appropriateness of the law, we should expand the interpretation of the above provisions and expand the scope of mental damage compensation to include mental damage compensation in the process of divorce.

(2) It is conducive to protecting the legitimate rights and interests of divorced parties.

Judging from the current situation of marriage and family relations in China, in recent years, marital infringement incidents have occurred frequently, and domestic violence is on the rise. According to statistics from relevant departments, about 400,000 families break up in China every year, and one quarter of them are caused by domestic violence. Divorce caused by extramarital affairs, adultery, cohabitation and bigamy is increasing day by day, which has become the main cause of divorce in some areas, accounting for more than 60% of the total number of divorce cases. [1 1] Many parties to a no-fault divorce have suffered serious physical and mental injuries because of the infringement and illegal behavior of one party. If they can't get relief, they can't protect their legitimate rights and interests.

(3) It is an important guarantee to realize "freedom of divorce".

In the development of human history, the freedom of divorce is a sign of social progress; The trend of diversification of social life makes the legal value of freedom unprecedented. However, the change of marriage system has also brought a series of problems.

For example, if a society is not fully industrialized and not so rich, the freedom of divorce may conflict with the parenting function of the marriage system and the mutual insurance function of husband and wife. Especially in developing countries like China, rural areas are vast, and the social welfare system in urban areas, especially social resources, is not enough to support the emergence of a large number of single-parent families. As far as divorced couples are concerned, there are also problems. At least there are quite a few divorce cases at present, especially those involving the so-called "third party". It is often the one who asks for a divorce (mostly middle-aged men) who is rich, successful and has a certain social status. However, due to physiological reasons, women tend to age and fade. Even if they remarry, they often marry an older man and take care of him. Therefore, judging from a person's social life, a divorced wife may often lose her "wife" forever. In fact, what was deprived was her insurance investment. In addition, many wives often give up their personal efforts to raise children and undertake housework, and invest in their husbands' achievements and status in their own way, so their husbands' achievements and status-not just property-often belong to their wives. However, when divorcing, these are generally not divided as property, which is really difficult to divide technically. Then divorce is actually a ruthless plunder of every wife. Empirical research shows that the living standards of women who divorced without fault in the United States generally declined after divorce, while the living standards of men generally improved. "The main economic consequence is the systematic poverty of divorced women and children." On the other hand, this man's achievements, status, wealth and other valuable factors may be enjoyed by a third party. These factors often cause great mental harm to divorced women. Therefore, the compensation system for divorce mental damage, as a legal regulation means of divorce freedom and fault liability, properly protects the legitimate rights and interests of the injured party and the realization of "divorce freedom". [ 12]

Fourth, the content of the compensation system for divorce mental damage.

Scholars in Taiwan Province Province believe that there are two kinds of divorce damages, one is divorce damages, and the other is divorce damages. It is also limited to when one spouse's behavior is an infringement that constitutes the cause of divorce, the other spouse can request compensation for the damage caused by the infringement. For example, it infringes on the life, body or personality of the other party because of murder, or infringes on the spouse's rights because of bigamy, adultery and other violations of chastity obligations. Are caused by separation. Divorce damage is different from separation damage, and it does not have the constitutive elements of tort. Divorce itself is the direct cause of damage. For example, if one spouse is sentenced to more than three years' imprisonment or maltreats the immediate superior relatives of the other spouse, it does not constitute infringement on the other spouse, but the other spouse can still claim damages. [13] Theoretically, the non-property damage in the second paragraph of Article 1506 of Taiwan Province Civil Code includes the mental pain suffered by the victim due to divorce and the pain suffered by the other party due to abuse, abandonment, adultery and bigamy.

Divorce damage and divorce damage can both cause mental damage, but they are still very different:

First of all, these two components are different. The essence of spiritual compensation for divorce is the cause of divorce, such as abuse, abandonment, infidelity and other acts constitute infringement, which is enough to reduce the injured party's existing evaluation, infringe on the injured party's expectation of normal marriage life, lead to their anxiety about their future life, and the emotional pain caused by the loss of their daily custody and common life due to divorce, so the infringer who implements divorce pays spiritual compensation. Therefore, it must meet the constitutive requirements of tort. The spiritual compensation for divorce damage is not caused by tort, but by divorce itself. According to the tort theory, there are still some deficiencies in the legal composition of this kind of mental damage, so it is more appropriate to interpret it as a legal protection policy to relieve the damage caused by divorce. The earliest provision for this kind of damage is the Swiss Civil Code 1907. Later, the Marriage Law of Nordic countries 1920, the Civil Code of Taiwan Province Province 193 1, and the French Civil Code 194 1 all have provisions. For example, as stipulated in Article 2 16 of the French Civil Code, if the fault of divorce lies entirely with the husband or wife, damages can be awarded to the other party to make up for the material and spiritual damage suffered by the other party due to the dissolution of marriage. Paragraph 2 of Article 15 1 of Japanese Civil Code stipulates that when an irresponsible spouse's life is seriously damaged due to divorce, the judge may allow him to ask the other party for a certain amount of solatium.

Secondly, the application of law is different. Compensation for mental damage caused by divorce is requested in accordance with the provisions of the Tort Law, which belongs to the provisions of the Property Law; Although the compensation for mental damage caused by divorce damage does not meet the requirements of tort, you can also request compensation, which is a special provision in the Relatives Law. [ 14]

Based on the above distinction, the author puts forward the following five questions to focus on the spiritual compensation for divorce damage.

(a) whether the mental damage caused by divorce will lead to the abuse of the compensation system for mental damage caused by divorce, and how should our laws continue to accept it?

If one spouse suffers non-property damage due to the fault of the other spouse or a third person, he may request compensation for mental damage. The law should provide relief for tort, so it is necessary to establish a system of compensation for mental damage caused by divorce. Of course, the law should design strict constitutive requirements to control abuse:

1, there must be illegal behavior. It is illegal to break up the marriage relationship because of the illegal behavior of one spouse or a third person. Illegal acts mainly refer to adultery, concubinage, bigamy, abuse, abandonment, attempted murder of spouse, long-term imprisonment and other illegal acts that lead to the breakdown of marriage relationship.

2. The fact that mental damage must occur. That is, divorce is caused by the illegal behavior of one spouse or a third person, and the innocent spouse suffers mental damage. Mental damage includes mental interest damage and mental trauma.

There must be a causal relationship. Adultery, bigamy, abuse, abandonment and other illegal acts committed by one of the spouses are the direct reasons for the breakdown of the marriage relationship and the mental damage of the innocent party.

4. There must be subjective fault. That is, the spouse or the third person who commits the illegal act is subjectively intentional or negligent.

In addition to the above requirements in the Law of Relatives, Chinese laws can also regulate the exercise time, payment method and amount limit of the right to claim compensation for mental damage to prevent it from being abused.

(2) What is the scope of the right subject and the obligation subject of divorce compensation for mental damage?

In the case of mental damage caused by the intervention of a third party, it is not without discussion whether the injured spouse can claim compensation for mental damage from the third party and whether his children can become the subject of the claim for compensation for mental damage.

This involves an understanding of the nature of marriage. Lin Xiuxiong, a scholar in Taiwan Province, used Kant's modern marriage theory as the basis to discuss the responsibility of adultery parties. Scholars in China traditionally believe that freedom of marriage is based on the specificity and exclusiveness of love, but deny that marriage is closely related to interests. But even in modern times, marriage can't be just sex and love as idealists imagine. It has always been a question of interests and the distribution of interests. A key to truly upholding the freedom of divorce is to fairly define and infringe on the real and expected interests invested and accumulated by divorced parties in marriage, and to effectively protect these interests, rather than simply prohibiting divorce or punishing the third party. Based on this, the author believes that Kant's marriage theory is also of considerable reference significance to China's marriage and family legislation, and is hereby expounded.

Kant believes that marriage is a lifelong interactive possession of men and women based on sexual characteristics. He divided the marriage relationship into the domination of people and things and the domination of personality, and analyzed it. Because of the establishment of marriage, husband and wife have "property rights and human rights rights" with each other. The so-called "real right" is the right to oppose the absolute concept of all people in the world, similar to real right. Its so-called "human rights" is the right to advocate legal personality as the subject of free will, similar to creditor's rights. These two rights are based on the free will of both parties and carry out the principle of "freedom of contract" in modern civil society. The rights of husband and wife based on mutual domination can exclude the exclusiveness and exclusiveness of the third party. This has carried out the principle of "inviolability of ownership" in modern civil society. Lin believes that Kant's marriage theory clearly explains the essence of modern monogamy, and at the same time introduces two basic principles of modern civil law-freedom of contract and inviolability of ownership into marriage, which really has its own unique views. [ 15]

The author thinks that Kant's marriage theory and the essence of monogamous marriage show that marriage is inviolable, thus demonstrating the possibility of a third party infringing on spouse rights and marriage relations. Therefore, in theory, the third party can also become the obligatory subject of compensation for mental damage in divorce. From a practical point of view, there is indeed a fact that a large number of third parties intervene to cause the breakdown of marriage and family relations. Conditionally giving the injured party a certain amount of compensation for mental damage can not only play the role of compensation, but also play a certain role of soothing, so as to better play the balance function of compensation for mental damage, help the injured party start a new life, and have positive significance for maintaining social order. As for the objection that the legislator often mentioned that the third party is difficult to define and prove. It is a matter of fact finding, which does not belong to theoretical discussion, so it will not be discussed here.

(3) Can the claim for compensation for mental damage of divorce be transferred and inherited?

It is generally believed that the right to claim compensation for divorce mental damage is an exclusive right, especially the exclusive right to exercise it, that is, whether the right is exercised or not is decided by the obligee. Before the decision is made, it may not be transferred or inherited, but once it is decided to exercise it, it is no different from ordinary property rights and has transferability. [ 16]

The claim for compensation for mental damage is a personal subjective claim put forward by the victim to soothe mental pain, so the existence and degree of pain must be subject to the subjective judgment of the victim himself. The pain suffered by the victim died and disappeared. Therefore, this right of claim cannot be transferred or inherited. Germany, France and Switzerland also stipulate that victims cannot inherit without asking. However, once the claim for compensation for mental damage of divorce is recognized or prosecuted according to the contract, it means that the victim has the intention to exercise the claim, and this exclusive right is transformed into ordinary creditor's right, which can be naturally transferred and inherited. This is the so-called exclusive lifting.

(four) whether the compensation for mental damage in divorce is based on the principle of no fault of the requesting party?

Article 1056 of the Civil Code of Taiwan Province Province in China stipulates that "if one of the husband and wife is damaged by the divorce judgment, they may claim compensation from the other party who is at fault. Although the situation mentioned in the preceding paragraph is not property damage, the victim may also request a considerable amount of compensation, provided that the victim is not at fault. " According to this regulation, damages can be divided into two types: property damages and mental damages. Property damage compensation is limited to the fault of the other party; Compensation for mental damage can only be made if the other party is at fault, and the claimant is also at fault. However, the author believes that since the compensation for mental damage that infringes on personality rights does not necessarily require the other party's fault, the compensation for mental damage in divorce should not be based on the principle of no fault, and the judge can judge according to the principle of "fault offset".

(5) Is the compensation for mental damage in divorce applicable to divorce by agreement?

The civil law of Taiwan Province Province, China only recognizes the right to claim damages for divorce, but the Japanese can claim damages for both divorce by judgment and divorce by agreement. That is to say, the compensation for mental damages in divorce in Taiwan Province Province is not applicable to divorce by agreement, but there is no such requirement in Japan. In my opinion, the legal effect is the same whether it is divorce by judgment or divorce by agreement. When divorcing by agreement, there is no agreement on damages, which does not mean giving up the right to claim damages. If the injured spouse only expresses his intention to dissolve the marriage relationship, it is unfair to assume that he has given up the right to claim damages and lost the legal remedy. Therefore, the Japanese regulations are superior to those of Taiwan Province Province, and the compensation for mental damage of divorce should be applied to the divorce by agreement.

To sum up, the author believes that it is feasible and necessary to establish a compensation system for mental damage caused by divorce. Our country should stipulate it in relevant civil legislation, in order to cooperate with the operation of social security system, give play to the protection function of law to the weak, and realize social progress.

[1] See Debate on Amendment of Marriage Law, edited by Li Yinhe and Ma Yinan, Guangming Daily Press, 1999.

[2] See constance Arons, Chen Xing, etc. : Benign Divorce, Central Compilation Press, 1998.

[3] See Nan Zhou et al. Roman Law, p. 18- 19, quoted from Yang Lixin's Individual Rights Law, China Procuratorate Press, 1996.

[4] See Yang Lixin's Law on Personality Rights, pp. 247-246, China Procuratorial Publishing House, 1996.

[5] See Wang Zejian: Theory and Case Study of Civil Law II, China University of Political Science and Law Press, 1998.

[6] See Liu's book: Research on Modern Tort Compensation, Page 2, Law Press, 1998.

[7] See Yang Lixin's Law on Personality Rights, pp. 254-252, China Procuratorial Publishing House, 1996.

[8] See Liu Zhu: Research on Modern Tort Compensation, p. 16 1- 162, Law Press, 1998.

[9] See Ma Jijun's book: "On the Establishment of Divorce Damage Compensation System", in Women's Studies, 1997 No 4.

[10] See Ma Jijun's On the Establishment of Divorce Damage Compensation System, in Essays on Women's Studies, No.4, 1997.

[1 1] See Chen Wei's Study on Establishing China's Divorce Damage Compensation System, Modern Law No.6, 1998.

[12] See "It's a little cold" by Su Li, published in ReadingNo. 1999,No. 1; Zhang Xianyu: Legal Regulation of Freedom of Divorce and Fault Liability, Law and Business Research, No.2, 2000.

[13] See (Taiwan Province Province) Lin Xiuxiong's Collection of Family Laws (II), page 128, Hanhe Bookstore Co., Ltd., 1995.

[14] See Shi Shangkuan's Law on Relatives, pp. 465-463, Taiwan Province Rong Tai Publishing House Co., Ltd., 1980.

[15] See Lin Xiuxiong's Collection of Family Laws (II) (Taiwan Province Province), p. 179- 180, Hanyu Bookstore Co., Ltd., 1995.

[16] See Wang Zejian: Civil Law Theory and Case Study II, pp. 268-269, China University of Political Science and Law Press, 1998.