论我国离婚损害赔偿之废除

发布时间：2018-07-16 13:27

【摘要】：离婚损害赔偿制度作为2001年《婚姻法》修正案中的亮点,在众多期待的目光中出台,然而该制度自实施以来,其司法适用状况一直差强人意,理论界与实务界对这一制度存废的争论也一直在持续之中。此制度设立目的是惩罚导致婚姻破裂的过错方,对无过错方给予经济赔偿,然而从立法规定上看,《婚姻法》第四十六条的规定范围过于狭窄,在相关的司法解释中也没有在证据上、程序上、责任主体等方面进行很好的完善,在实践中成为当事人行使权利的障碍,法官在审判中也出现了同案不同判、改变审判思路的现象。因此,此制度司法适用状况的不尽如人意,立法价值难以实现,成为婚姻家庭中侵权纠纷的障碍,在探索民法典之婚姻家庭编之中,是否继续保留这一制度,如何才能更好实现对夫妻之间民事权益的维护,也成为很多学者专家和法律编纂者所关心的问题。本文将在此基础上展开自己观点意见的陈述。本文分为三部分,第一部分主要是对我国离婚损害赔偿的概述,从我国离婚损害赔偿的历史发展沿革入手,到现在的法律规定,进行概念界定,性质定位,从而对其进行全面的认识,然后梳理理论和实务界对其存废的讨论,总结争议焦点为文章下一步的讨论奠基。第二部分主要在学者们对离婚损害赔偿存废争议的归纳梳理的基础上,提出自己的观点和建议。笔者认为离婚损害赔偿就其利益衡量而言,是弊大于利的,其立法价值在现实中很难实现,在民法典的制定中应予废除:首先从学理上分析,其请求权基础不明,它属于第一性权利还是第二性权利值得斟酌;而且其规定和相关法律的不够协调,也使司法中造成了法官囿于法律规定,难免会出现同案不同判,而使夫妻婚内侵权难以保障;另外此制度背离世界婚姻法发展方向,有违无过错主义的婚姻立法趋势。其次从实践上分析,离婚损害赔偿取证难、范围窄,并且将损害赔偿与离婚挂钩的规定使其司法成本高,社会效益低,在离婚案件中使用少,支持率低,不符合效率原则,而且法官在审判中处理此类诉讼案件时改用的是侵权的审判思路。第三部分则是对废除我国离婚损害赔偿之后,如何探索更好的保障夫妻之间权益的制度措施提出自己的意见:笔者认为在统一的民法典语境下,夫妻之间具有平等的人身财产关系,因此应当明确规定夫妻之间的侵权损害赔偿,此赔偿与离婚无必然联系。为此,需首先明确规定配偶权来对夫妻之间的人身和财产权利进行全面系统的规定,并通过对夫妻财产制的进一步完善来作为夫妻侵权损害赔偿的基础;另外由于夫妻之间的关系不同于一般的当事人之间的关系,诉讼中针对夫妻间的举证问题、承担方式等方面也应作出不同于一般的民事侵权规定,从而更好解决夫妻之间的矛盾,促进家庭社会的和谐,维护离婚夫妻间的利益。
[Abstract]:As a bright spot in the amendment of the Marriage Law in 2001, the system of compensation for divorce damages has been introduced in the eyes of many people. However, since the implementation of the system, its judicial application has been unsatisfactory. Theorists and practitioners have been arguing about the existence and abolition of this system. The purpose of this system is to punish the wrongdoer who caused the breakdown of the marriage, and to pay economic compensation to the no-fault party. However, from the legislative point of view, the scope of Article 46 of the Marriage Law is too narrow. In the relevant judicial interpretation, there is no good improvement on the evidence, procedure, responsibility subject and so on. In practice, it has become an obstacle for the parties to exercise their rights, and the judge has also found different judgments in the same case in the trial. The phenomenon of changing the thinking of the trial. Therefore, the judicial application of this system is not satisfactory, the value of legislation is difficult to achieve, become the obstacle of tort disputes in marriage and family, whether to continue to retain this system in the exploration of the civil code of marriage and family. How to better protect the civil rights and interests between husband and wife has also become the concern of many scholars and legal compilers. On this basis, this paper will develop a statement of my views. This article is divided into three parts, the first part is the summary of our country divorce damage compensation, from the historical development of our country divorce damages, to the current legal provisions, the definition of the concept, the nature of positioning, Therefore, the author makes a comprehensive understanding of it, then combs the theoretical and practical discussion of its existence and scrap, and concludes the focus of the controversy as the foundation for the next discussion of the article. In the second part, the author puts forward his own views and suggestions on the basis of summing up and combing the dispute of divorce damages. The author thinks that the damage compensation for divorce is more harmful than good in terms of its interests, its legislative value is difficult to realize in reality, and it should be abolished in the formulation of civil code: firstly, from the theoretical point of view, the basis of its claim is not clear. It belongs to the primary right or the second right is worth considering, and its stipulation and the related law is not coordinated, also causes the judge in the judicature to be limited by the law stipulation, will inevitably appear the cotrial different judgment, and causes the husband and wife to violate the rights within the marriage difficult to safeguard; In addition, this system deviates from the development direction of the world marriage law and violates the trend of non-fault marriage legislation. Secondly, from the practical analysis, it is difficult to obtain evidence of divorce damages, narrow scope, and the provisions of linking damages to divorce make its judicial costs high, social benefits low, use less in divorce cases, support low, not in line with the principle of efficiency. And the judge in the trial to deal with this kind of litigation cases instead of tort trial ideas. The third part is about how to explore how to better protect the rights and interests of husband and wife after the abolition of divorce damages in China: the author thinks that in the context of the unified civil code, Husband and wife have equal personal and property relations, so we should clearly stipulate the tort compensation between husband and wife, which is not necessarily related to divorce. Therefore, it is necessary to define the right of spouse to make a comprehensive and systematic provision on the right of person and property between husband and wife, and to further improve the system of husband and wife property as the basis of compensation for damages of husband and wife tort. In addition, because the relationship between husband and wife is different from that between the parties in general, the civil tort provisions should be made different from those of the general civil tort in respect of the proof and the way of bearing between the husband and wife in the lawsuit. In order to better solve the contradiction between husband and wife, promote the harmony of family and society, safeguard the interests of divorced couples.
【学位授予单位】：甘肃政法学院
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.9

【相似文献】