legal ground
Article 109 1 of the Civil Code of People's Republic of China (PRC)
In case of divorce under any of the following circumstances, the innocent party has the right to claim damages:
(1) Bigamy;
(2) Living with others;
(3) committing domestic violence;
(4) maltreating or abandoning family members;
(five) there are other major faults.
Since the establishment of the divorce damage compensation system in China, there has been an academic debate about the nature of divorce damage compensation liability in China. There are those who claim tort liability and those who claim breach of contract liability. Mr. Lin Xiuxiong, a scholar in Taiwan Province Province, divides the damage caused by divorce into two types: one is the damage caused by separation; The other is divorce damage (people call it divorce damage in a narrow sense). The so-called divorce damage refers to the damage caused by the tort of one spouse; Divorce damage refers to the damage caused by divorce to the innocent spouse. This classification standard is the cause of the damage. According to this classification, the cause of divorce damage lies in the tort of the spouse who caused the divorce, while the narrow sense of divorce damage only lies in the fact of divorce. If the damage caused by divorce only includes the damage caused by separation, then the liability for compensation for divorce damage is undoubtedly tort liability. As for what kind of rights have been violated, some scholars claim that the spouse rights of the innocent party have been violated. Another scholar claims that the infringement is the personal rights of the other party. Mr. Lin Xiuxiong believes that the behavior of one spouse may infringe on the life, body or personality of the other spouse, and may also infringe on the rights of the other spouse. These scholars' views all have some truth, and all reveal the reason why the infringing object is separated from others. We can't give a general answer to this question, we can only analyze it in detail. Although the tort liability theory correctly points out the nature of the liability for divorce damages, the divorce damages also include the narrow sense of divorce damages, which only lies in the divorce facts. Obviously, divorce is by no means an infringement. Therefore, the claim of divorce damages liability (in a broad sense) is tort liability, at least it is incomplete.
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