离婚时损害赔偿的再思考

中国在2001年修改1980年《婚姻法》时,以第46条规定了离婚时的损害赔偿。在其后的十多年间,虽在实务中以此诉请赔偿的离婚案件众多,但是离婚时损害赔偿却过少被作为判决根据援引。难以确定赔偿金额是一个重要的原因。厘清离婚时损害赔偿的性质,有助于解决该问题。离婚时损害赔偿,既存在侵权亦存在违约。违约,使得无过错一方失去对婚姻的期待,失去的期待可计入赔偿金。

The Reconsideration of Divorce Damage Compensation

In 2001, when China amended Marriage Law of the People's Republic of China, which was enacted in 1980, the system of divorce damage compensation was formulated in Article 46. Over the next 10 years, although in a large number of divorce cases damage compensations were claimed in the practice, it was rare for this article to be quoted as judging foundation. One of the most important reasons is that it is hard to determine the amount of compensation. To solve this problem, to clarify the nature of the divorce damage compensation is helpful. When a divorce happens, both the tort and the breach of contract happen. The breach of contract make the no-fault party lose the expectance about marriage, and that should be included in the compensation.