離婚損害實證研究──准駁與金額量定分析

我國現行民法第1056條離婚損害規定自1930年制定至今從未修法，實務上請求財產上損害之情形不多，非財產上損害無客觀量定之標準，有學者主張該條規定應予刪除。本文分析離婚損害事件，一方面確認實際請求財產上損害的情形，並釐清法院在非財產上損害准駁與金額量定的判斷標準；另一方面與前人研究比較，觀察法院考量的因素是否改變，且將實務運用的情形對照學說見解，提出對離婚損害制度的修法建議。本文以2018年至2023年間所有法院事實審與民法第1056條離婚損害請求相關之民事判決為研究對象，試圖發現法院准駁與金額量定的審酌因素。財產上損害請求僅有3件且皆被駁回，只以質性研究方式詳細探討每筆判決內容；非財產上損害請求則有221件可進行准駁分析，再以其中准許的94件進行金額量定分析。由於過去文獻並未針對離婚損害與其他離婚後財產上效力之關聯性進行分析，故增加離因損害、剩餘財產分配、贍養費或扶養費之相關變項。在非財產上損害的准駁方面，藉由卡方檢定得出與准駁結果存在顯著相關的變項為「法院是否認定被請求人過失態樣為婚外情」、「法院是否認定被請求人過失態樣為溝通不良」、「被請求人律師代理有無」、「一造辯論與否」、「被請求人是否提出金額抗辯」、「請求人同時請求贍養費或扶養費等費用」及「兩造有無未成年子女」；而在決策樹模型為節點的重要因素有「法院是否認定被請求人過失態樣為婚外情」及「一造辯論與否」。在非財產上損害的金額量定方面，透過多元迴歸分析得知「請求金額」及「被請求人月收入」可能會影響法院提高判給的數額，兩者皆與量定金額達顯著關聯。基於前述分析可知曉近年實務判決之趨勢，財產上損害使用率極低，然未來該項請求有增加的可能性。而非財產上損害之部分，本文整理了法院認定被請求人有過失而必須賠償請求人慰撫金之情形，發現有些離婚損害的種類無法被離因損害涵蓋，如溝通不良。而每個離婚後財產上效力請求權的目的皆不同，雖功能有部分重疊，也不該由其他請求權取代。故本文認為仍可保留第1056條之規定，更詳細明定造成損害之原因或程序，且離婚損害有責事由可涵蓋離因損害侵權行為，應將其統一規定於第1056條，而不再適用第184條、第195條。法院於解釋、適用此條文時，應注意請求金額所造成的定錨效應，避免請求人一味把數額提高；亦要考量同為離婚財產上效力的離因損害、贍養費、剩餘財產分配，留意不要重複評價，以防二次賠償情形發生；痛苦程度應與請求人的學歷、職業、收入、資產無關，無庸列為考慮因素。希望上述建議能加速審理程序進行，讓當事人得到妥適的裁判且避免雙方不必要之衝突。

關鍵字

離婚損害；實證研究；決策樹；金額量定；迴歸

並列摘要

The content of Article 1056 of the Civil Code in Taiwan has not been amended since 1930. There are few cases of claiming property damage, and non-pecuniary damage has no objectively measured criteria and some scholars advocate to delete this provision. This paper concludes with a quantitative analysis of the case of divorced damages, on the one hand, to verify the actual situation of the claim for property damage, and to clarify the judgment criteria of the court on non-pecuniary damage, and compare with the previous study, to observe whether the factors of the Court's consideration have changed; on the other hand, the practical application of the situation in an empirical way to counteract the views of the scholar, and make suggestions on the system of divorced damages. This paper collects all court civil judgments related to Article 1056 of the Civil Code for divorced damages from 2018 to 2023, and tries to identify the criteria for the court's granting and assessment of the amount. Only 3 cases of property damage are examined in detail in a qualitative way; 221 cases of non-pecuniary damage can be analyzed in detail, and 94 cases of which are permitted are quantified. As the relationship between divorce damage and other property effects after divorce has not been analyzed in the past studies, so this paper increases the variation in the relationship of damage of Article 184 and Article 195 of the Civil Code, distribution of the remainder of the property, and alimony or furnishing maintenance. In the case of permission or rejection of non-pecuniary damage, there were significant variations analyzed by the Chi-Square test, like “Is the court deemed defendant has an extramarital affair?”, “Is the court deemed defendant to be defective in communication?”, “Does defendant have a lawyer?”, “Is a judgment based on a party's admission of all facts or not?”, “Does defendant make an objection to the amount of damage?”, ”Does the plaintiff also claim for alimony or furnishing maintenance?”, and ” Do the plaintiff and defendant have any minor children?”. The important factors in the decision tree model as nodes were " Is the court deemed defendant has an extramarital affair?" and " Is a judgment based on a party's admission of all facts or not?". Regarding the amount of non- pecuniary damage, the multiple regression analysis showed that "amount of claim" and " defendant 's monthly income" might influence the court to increase the amount of damage, and both of them were significantly related to the amount of damage. While "marital age" might influence the court to decrease the amount of damage, but there was no significant difference in this variable. Based on the above analysis, we can see the trend and application of practical decisions in recent years: the utilization rate of property damage is extremely low, but the possibility of the claim will increase in the future. As for non-pecuniary damage, this article compiled a list of cases in which the court found that the petitioner was at fault and had to pay, and found that some types of divorced damages could not be covered by damage of Article 184, such as miscommunication. However, the purpose of each property effects after divorce is different, and although the functions of each claim overlap, they should not be replaced by other claims. Therefore, this article believes that the provisions of Article 1056 can still be retained to specify in more detail the causes or procedures for causing damages, and that the causes of liability for divorce damages can cover tortious acts of divorce damages, which should be unified in Article 1056, instead of applying Article 184 and Article 195. When interpreting and applying this provision, the court should pay attention to the anchor effect caused by the amount of the request, so as to prevent plaintiff from raising the amount. It is also necessary to consider the remainder of the property, and alimony or furnishing maintenance, and be careful not to duplicate the evaluation, in order to prevent the occurrence of secondary compensation. The degree of pain and suffering should be unrelated to the plaintiff 's education, occupation, income, and assets. It is hoped that the above suggestions can speed up the trial process, so that the parties can receive appropriate decisions and avoid unnecessary conflicts between the parties.