Author: Lawyer Zhang Weijuan, December 28, 2016

Abstract: In 2001, the new Marriage Law first clarified the system of compensation for damages caused by divorce between spouses. However, with the development of the times and the progress of society, the issue of compensation for mental damage has become increasingly prominent. Among them, the qualitative determination of mental damage and the quantitative balance of compensation amount have become the biggest obstacle. Based on years of specific case practice, this article makes an attempt to solve such problems, in order to throw bricks and attract jade.

Keywords: Divorce Mental Damage Compensation

The principle of equality between husband and wife is the legislative basis of the current Marriage Law of the People's Republic of China. Whether it is marriage or divorce, the principle of equality is the primary prerequisite. Currently, the high divorce rate is a cause for concern, as problems such as property combination and division, damage compensation, and economic compensation arise in divorce disputes, Article 40 of the Marriage Law of the People's Republic of China clearly states: "The spouses agree in writing that the property obtained during the marriage relationship shall belong to each other. If one party pays more obligations for raising children, taking care of the elderly, assisting the other party in work, etc., they can request compensation from the other party at the time of divorce, and the other party should provide compensation. However, in actual divorce cases, compensation for damages is often difficult to accurately grasp, Especially the measurement of mental damage compensation is a thorny issue that troubles the legal profession.

1、 Definition of the Concept of Mental Damage in Divorce

Mental damage compensation is a civil right of the right subject to demand compensation for mental pain or damage to their mental interests caused by illegal infringement of their personal rights. The Civil Law Journal believes that "spiritual damage is damage to the spiritual activities of civil subjects; compared to property damage, the legal characteristics of spiritual damage are related to the invisibility of spiritual interests. This is another important role that emerged on the historical stage in the last century after personal rights and personality rights, and has gradually entered the codes of various countries. China's current civil laws do not have clear provisions for compensation for spiritual damage, and in judicial practice, the Supreme People's Court Interpretations on Several Issues Concerning the Determination of Compensation Liability for Mental Damage in Civil Torts. The new Marriage Law clearly stipulates for the first time the system of mental damage compensation for the innocent party in divorce. The Supreme People's Court's Interpretation (1) on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China (hereinafter referred to as the Interpretation) officially clarifies that divorce damage compensation includes material damage compensation and mental damage compensation, which is a milestone in mental damage compensation. According to common legal principles, compensation for mental damage caused by divorce, as an important part of economic compensation, refers to the civil liability that a spouse who violates the legitimate rights and interests of the other spouse, resulting in the breakdown of the marital relationship, and the damage and trauma to the mental interests and mental trauma suffered by the innocent spouse during divorce.

2、 Determination of the Right to Claim for Mental Damage in Divorce

Tort behavior is the starting point for China's request for compensation for damages. As a part of divorce compensation for damages, China's new Marriage Law has clear provisions. Article 46 states that the composition of civil liability for divorce mental damage compensation must include four essential elements: illegal behavior, actual damage, subjective fault, and causal relationship. As a special form of infringement compensation, the right to claim compensation for divorce mental damage is based on the provisions on spouse rights in the Marriage Law and the specific provisions on personal rights in the General Principles of Civil Law.

Generally speaking, the occurrence of compensation for mental damage in divorce is due to the perpetrator's obvious wrongdoing such as adultery, bigamy, cohabitation, abandonment, abuse, or murder of the victim, causing mental pain or inner trauma to the other party, leading to complete emotional breakdown. At the time of divorce, the innocent party has the right to demand mental compensation from the wrongdoing party for the mental damage suffered, causing the wrongdoing party to be subject to economic sanctions, It is conducive to reflecting the fairness of the law and safeguarding the legitimate rights and interests of the innocent party. It can be seen that the party or right subject who implements compensation for mental damages in divorce must have "fault". China's Marriage Law also stipulates the compensation for damages to the party who is at fault in divorce. Although China's law does not specify "no fault", the clarity of the four illegal behaviors is the basic basis for determining whether there is "fault". In actual divorce damage compensation, the right to request compensation for divorce mental damage is the right of the innocent party, and the reason why it is its right is precisely because the fault party infringes on the spouse's rights, health rights, life rights, and other rights of the couple during the continuation of the marital relationship. This is stipulated in Articles 4, 9, 14, 20, and 46 of the Marriage Law; Interpretation of Article 28; The exact basis can be found in articles such as Article 1 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Determination of Liability for Mental Damage Compensation in Civil Torts.

Spiritual damage compensation is a compensation for infringement damages, and as a part of the compensation for damages, it has its particularity. This is also clearly stipulated in Articles 98 to 105 of the General Principles of the Civil Law: the fault party of divorce mental damage compensation shall bear civil liability for causing mental harm to the innocent party due to infringing on the identity interests of the husband and wife, namely spouse rights and personality rights. Therefore, divorce is a necessary condition for the occurrence of the right to claim compensation for mental damage caused by divorce, Article 3 of the interpretation stipulates: "If a party files a lawsuit solely based on Article 4 of the Marriage Law, the people's court shall not accept it; if it has already been accepted, the court shall rule to dismiss the lawsuit." Article 29 stipulates: "In cases where the people's court has ruled that divorce is not allowed... during the existence of the marriage relationship, if the party does not file a lawsuit for divorce and separately files a claim for damages in accordance with this provision, the people's court shall not accept it, The victim cannot claim compensation for mental damage.

It is worth noting that in specific divorce cases, whether underage children have the right to request compensation for divorce mental damage is a hot topic of discussion from all walks of life. I personally believe that specific issues should be analyzed in detail, and the key is to clarify the subject of the damage. From the above, it can be seen that divorce mental damage compensation is a civil liability that should be borne due to one party's legal illegal behavior during marriage, causing damage to the spirit of the innocent party, The parties to the marriage are the subject and responsible party of the right to claim compensation for mental damage caused by divorce, and underage children should not be the subject of the right to claim compensation for mental damage caused by divorce. However, due to the fact of divorce, underage children also inevitably suffer direct damages. Although they cannot have direct claims, they should be a key factor in determining the amount of compensation for damages. So do underage daughters have no right to claim? This is not entirely true. According to the relevant provisions of the General Principles of Civil Law, if there is mental damage caused by domestic violence, abuse, abandonment, etc. of underage children, underage daughters have the right to sue for infringement, in order to pursue the civil liability of the infringer.

3、 Measurement of Compensation Amount for Spiritual Damage in Divorce

The determination of the amount of compensation for mental damage caused by divorce has always been a focus of debate and the most difficult issue to coordinate. According to the principle of fairness, compensation is equivalent to damage, so determining the amount of damage is a prerequisite for calculating compensation. From the perspective of damaging interests, the main damages include: direct property loss caused by infringement on personal health and life; The loss of income generated by normal work due to severe physical and mental trauma, as well as the loss of pure mental pain and other mental benefits. Based on the author's practice, comprehensive consideration, adherence to fairness, and flexible balancing are feasible strategies for measuring the amount of compensation.

1. The degree of fault or damage. For the former, it can be seen from numerous cases that the fault party causes different injuries to the injured party due to differences in the means and occasions of infringement, the frequency of infringement, and the time of infringement, and the degree of punishment they should receive also varies. Generally speaking, the wrongdoing party's blatant bigamy, cohabitation, or adultery, despite multiple warnings from the victim, is determined to act recklessly. In some cases, they not only do not change their past wrongs, but also take advantage of more insulting, violent, and other means to beat or abandon the victim. This kind of damage is obviously hundreds of times greater than the use of hidden and conscientious circumstances. Undoubtedly, the worse the infringement method, the longer the duration, the greater the mental damage caused by the victim, The determination of compensation amount should be relatively higher than that of general domestic violence. For the latter, the situation also varies from person to person. People with different genders, ages, and temperaments have different abilities to withstand and recover harm. Even if they suffer similar damage, the consequences can vary greatly, even if they are completely different. But the basic rules still have rules to follow. In terms of gender, women are more likely to experience mental pain when subjected to equal harm than men. In terms of age, young adults are more likely to recover from pain than elderly people. In terms of personality, people who are sensitive, emotional, and serious about love are more susceptible to harm. This requires a detailed analysis of specific cases, a comprehensive and in-depth understanding of the types, motivations, and damages of the case itself and the implementation of the fault, in order to grasp the overall situation of judging the degree of fault.

2. Economic ability and attitude towards admitting mistakes. This involves two aspects. For the infringer, their actual economic compensation ability is an issue that cannot be ignored. If the other party has no fixed source of income and is destitute, any amount of compensation for mental damage is also empty talk. Moreover, beyond "reasonable" limits, it is often impossible to reach a consensus. Of course, the same region cannot be cut across all, and different professions lead to uneven income levels, which cannot achieve literal equality, If we ignore the economic capacity of the wrongdoing party and determine the amount of compensation based on other similar cases, it is obviously insignificant for wealthy people. This is equivalent to the purpose of receiving equal harm, insult, or abuse from the other party by paying very little consideration. The other party naturally cannot obtain psychological comfort, and the compensation for divorce damages is meaningless. On the contrary, the poor economic capacity makes it difficult to sustain life in the face of huge compensation, It is also impossible to reach a consensus on divorce, and maintaining the status quo will inevitably affect the quality of life. For victims, a certain amount of compensation is closely related to their own economic capacity, and for those who have accumulated and expect high income, the compensation amount is clearly just a mockery; On the contrary, if the family's income originally depends on the victim, after divorce, the victim's own economic situation will inevitably be in dire straits. The insufficient amount of compensation for damages will have a significant impact on the victim and their children's future lives, and the compensation for mental damage should be adjusted accordingly. In addition, the role of attitude cannot be ignored. Generally speaking, if the aggrieved party actively acknowledges and is willing to accept compensation, the victim's psychological comfort will often be lenient compared to apologizing. Otherwise, if the aggrieved party's attitude is overbearing and shows no remorse, the victim will inevitably suffer even more, and the asking price will naturally not be "cheap" to the other party. Therefore, when determining the compensation for mental damage, the attitude of the wrongdoing party should be taken into account.

In short, as one of the essential elements of divorce, compensation for mental damage in divorce has a significant position and role. With the development of the times and the improvement of public awareness, the determination of mental damage and the balance of the amount of compensation for mental damage have become increasingly crucial. The ultimate manifestation of compensation for mental damage in divorce is to make the infringing party bear the cost of infringement. This not only serves as a warning, condemnation, and punishment for behavior that disregards the interests of the spouse, violates marital obligations, and norms of marital behavior, It also has a warning radiation effect on the public, and has profound significance in maintaining the stability of marriage and family, and building a harmonious society.

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