Paper Keywords Tort Liability of the Third Party in Marriage and Family
First, explore the reasons.
(a) the wife sued? Third party? lose a lawsuit
An article in the Legal Daily reported that the wife sued the third party for infringement, and the first instance won the case. The court of second instance ruled that the first instance judgment was revoked and the prosecution was rejected. Why? According to Articles 4 and 6 of the current marriage law and Articles 3 and 29 of the Supreme People's Court's judicial interpretation of the current marriage law, the court of second instance held that the case did not fall within the scope of the people's court, and the legal basis for the plaintiff to sue the third party was insufficient. In addition, according to the relevant provisions of the above-mentioned legal provisions, the third person outside the marriage relationship is not the responsible subject for infringing the spouse's rights, so what about the wife's seal? Is the scandium cover broken?
(2)? Third party? Publicly demand to divide the inheritance with the original wife and take it to court.
In this case, the third person had proper relationship with the decedent before his death, and the latter gave part of his property to the former, and the above scene appeared after the decedent died. The court finally closed the case in favor of the third party.
Although the above two examples are individual cases, the reason is obviously due to the lack of existing legal provisions. 200 1 The revised Marriage Law of China has not been promulgated? Spouse rights? This concept is only stipulated between the fourth husband and wife? Loyal to each other? Obligation, this article means that mutual loyalty between husband and wife is a legal obligation, but it is not the obligation of a third party. One spouse can't sue a third party for breaking the law with this law. For example, Article 46 of the Marriage Law stipulates that only if divorce is caused by bigamy or cohabitation with others, the innocent party has the right to claim compensation, that is, if a third party does not cause divorce, it cannot claim compensation; Compensation cannot be applied to the intervention of a third party other than bigamy or cohabitation, and the subject liable for compensation can only be the spouse of the wrong party. In the same criminal law? Bigamy? Only punishment? Bigamy? The act of a third party intervening. The blank of law makes the third party go unpunished, which intensifies the social flooding.
Second, the reality of the third party's tort liability
(a) Re-understanding the participation of third parties
The so-called third-party involvement in marriage refers to people other than husband and wife having sex with one of the parties in the marriage or other behaviors that are not proper relationship and hinder the marriage. Its characteristics are as follows: first, it must be intentional in the subjective aspect of the third person. That is, a third party knows that another person has a spouse, but still wants to maintain a sexual relationship or an ambiguous relationship with him. If you don't know, don't know that the other party has a spouse, or the other party deliberately conceals the married status, you should not be punished as a third party. In the above cases, the married status of the other party was not known at first, but only after the other party had sex with his spouse. If the other party actively cuts off contact, it is not a third party. If you keep proper relationship after knowing the truth, you are considered to have the subjective conditions of a third party. Second, in the objective aspect of the third party, there must be facts that hinder marriage and family relations. This fact is manifested in the long-term relationship or ambiguous relationship between others and one of their spouses, that is, there must be intervention. Third, the object of the third person's intervention is the legal marriage relationship. This is also the essence of third-party intervention. Because our country is monogamous, and there is a third party between legal husband and wife, which is obviously the destruction of legal marriage. Fourth, the intervention of a third party will lead to the consequences of destroying other people's marriage and family, and even lead to divorce disputes.
(B) the harm of the third party involved in marriage and family
First of all, it is harmful to family and society. Monogamy in marriage and family is the closest relationship based on emotion in the world. Once there is an emotional crisis, it will become the most indifferent relationship in the world in a blink of an eye. Due to the intervention of the third party, the spouse of the wrong party lacks consideration, warmth, care and love for the other party, and some take excessive actions, resulting in a series of serious vicious criminal cases. According to an unofficial statistic, 2.46 million couples divorced in China in 2009, and the phenomenon of family breakdown caused by the intervention of a third party is more common. 64.8% of women divorce because their husbands have a third party, and 48.6% of men divorce because their wives have an affair.
Secondly, it will affect the healthy growth of the next generation. No society can deny the special role of the family in preventing and controlling juvenile delinquency. Many children from single-parent families live and grow up in a family atmosphere lacking warmth, care and security, which eventually leads to psychological distortion, laissez-faire behavior and some even slide into the abyss of crime. According to the statistics of relevant experts, the proportion of juvenile delinquency in divorced families is as high as 40% or more. In addition, adultery and cohabitation may also lead to the increase of children born out of wedlock, which not only undermines China's family planning policy, but also affects the physical and mental health of children born out of wedlock.
It can be seen that the high divorce rate caused by the intervention of the third party is eroding the normal marriage and family life and the stable social environment, affecting the healthy growth of the next generation, and it is getting worse and worse, which should be highly valued by the whole society.
(c) The significance of legislation regulating third-party intervention
It is difficult to eliminate the social harm of the third party's intervention by moral restraint alone, so legal supervision is imperative. Its significance is as follows:
First of all, it is good for the family. Under the condition of socialist market economy, family is still the foundation of society and the premise of social continuity and stable development. For most married people, protecting the integrity of marriage and family is more important than protecting other personal interests. Through legislation, the legal responsibility of the spouse who is having an affair will be aggravated, and they will be warned to control themselves, love their families and assume family responsibilities.
Secondly, it is good for San Xiao. In practice, the third party involved in other people's marriage under the guise of love is mostly victimized and abandoned in the end. Therefore, once the law is promulgated, in addition to supervising the proliferation of mistresses and poaching people, it is also a kind of protection for mistresses themselves, at least in time to curb more third parties who have not delved into it and save themselves.
Finally, it is beneficial to society. Family is the cell of society. When the third party group spreads, it will affect the whole society. If the social moral atmosphere is corrupted and the original ethical order is disrupted, the whole society will be in turmoil. Therefore, it is necessary to investigate the legal responsibility of the third party through the dual norms of law and morality, protect family stability, build a harmonious society and promote the construction of spiritual civilization.
Third, the way to solve the third party's involvement in marriage and family.
In view of the increasingly rampant involvement of the third party, the innocent party's rights and interests in the infringed family have been infringed and there is nothing to do. I will talk about some views on solving the problem of the third party's involvement in marriage and family.
(1) Legislative sanctions bear the brunt.
China's current marriage law has made many provisions on the rights and obligations between husband and wife, which greatly protects the legitimate rights and interests of the innocent party in the marriage relationship, but its content is not comprehensive, resulting in the third party's interference in marriage and family can not be effectively punished. Therefore, the author thinks that the concept of spouse right should be introduced into the marriage law, and the tort nature and civil liability of the third party should be clearly defined. Improve the system of compensation for divorce damages, and include the third party as the subject of compensation obligation that damages the legitimate rights and interests of the innocent spouse, and it is not limited to the fact that both parties must divorce. Whether to divorce can only be used as a measure to judge the severity of the third party's infringement and the amount of compensation for the innocent spouse. In addition, in order to increase the punishment, the provisions of the criminal law can be applied to the third person who refuses to mend his ways, the circumstances are bad or cause serious consequences, and can also serve as a warning to the third person who tries to intervene, so as to prevent problems before they happen.