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我国《婚姻法》规定的离婚过错损害赔偿制度在法律适用中存在诸多问题,因此有必要在理论上予以厘清和深入探讨。作者认为,在归责原则上,应将过错推定原则引入到婚姻家庭领域中的损害赔偿制度中;在性质认定上,应将婚姻法损害赔偿责任的性质定性为侵权责任;在请求权行使方面,认为婚姻法中的损害赔偿请求权不仅配偶有之,家庭成员也应该享有,而且应将婚姻法中的损害赔偿请求权作为一个独立的请求权,而不把离婚作为前提。
There are many problems in the application of law in the system of damages for divorce under the Marriage Law of our country, so it is necessary to clarify and discuss in depth in theory. The author believes that in the principle of attribution, the principle of fault presumption should be introduced into the system of damages in the field of marriage and family. In nature recognition, the nature of the liability for damages in the law of marriage should be characterized as the tort liability. In terms of the exercise of the right of claim, It is considered that the right of claim for damages in the Marriage Law should not only be enjoyed by spouses, but also by family members. And the claim of damages in the Marriage Law should be taken as an independent right of claim without precondition of divorce.