Liu Liu, a female writer who created the image of mistress in My Dwelling House, brought her creation into reality. In Weibo, she declared war on "mistress who has existed for five years" and replied that "he (husband) is my lover. You can't hurt me and I won't allow you to hurt him. " Calm, keen, powerful and restrained ... The "June 6th" strategy has become a "model" respected by netizens. However, not everyone can have the same literary talent, and not everyone's Weibo condemnation can have such influence. No matter how influential the network scolds, there is no guarantee that mistress will be repelled. Is there any way to deal with mistress beyond the moral legal bottom line? Liu Liu, a female writer who declared war on his mistress online, suddenly announced that Weibo had declared war on his mistress Liu Liu. "You tell my father (Liu Liu's son) that you will give me all the communication details, and I will tell you publicly that I have received it. You threatened him to post it online, so I decided to post it online in advance. He is my lover, you can't hurt me, and I won't allow you to hurt him. Thank you. " Then, Liu Liu sent another tweet, "Miss Li Bingbing, thank you for your letter and phone call. In fact, my father and I have discussed in depth the news you informed me in the past four nights. Looking back on the long experience of living together for 23 years, we are more determined to spend the rest of our lives together. No matter what the future marriage path is, thank you for your love and care for my father in the past five years. I also hope that you can accept the fact that he loves me more than you. " A mistress has maintained a relationship for five years and even openly challenged the old woman. The TV drama-like plot has entered the real life of Liu Liu, a female writer. This statement has won the support of netizens. "Going to the hall, going to the kitchen, driving a good car, living in a good house, playing a mistress, playing hooligans, Sister Liu Liu is a female benchmark and won a beautiful woman!" Legal analysis? There is nothing ingenious in the law about the third wife ruling the third wife. In this modern society that pursues individual liberation and freedom, the problem of "the third party" has become more and more prominent. According to incomplete statistics, in judicial practice cases, divorce proceedings involving third parties have accounted for 50%. Li Lizhi, a member of the Marriage and Family Law Committee of the Municipal Lawyers Association and a lawyer of Beijing Ying Ge Law Firm, said that although most of the public hold a contempt and condemnation attitude towards the third party, legally, the General Principles of the Civil Law and the Marriage Law of our country do not clearly stipulate whether to investigate the legal responsibility of the third party or whether to impose legal punishment on the third party. 200 1 Article 46 of the revised Marriage Law establishes the system of divorce damages, and bigamy; Spouses cohabit with others; Commit domestic violence; If four cases of maltreatment and abandonment of family members lead to divorce, the innocent party has the right to claim compensation at the time of divorce. This is also the only legal system in China to protect marriage victims. However, the subject of liability is limited to the spouse of the fault party, excluding the civil liability of the "third party". Moreover, compensation for damages can only be based on divorce. Teacher Li Lv said: "Because there is no explicit provision in the law, there is nothing we can do about the liability of the' third party' in judicial practice. Moreover, since the implementation of the Marriage Law, only a few courts in the country have accepted several cases in which the innocent party sued the third party, and some cases have been settled through mediation. Some judgments rejected the prosecution of the innocent party. " It can be seen that there is no clever way for a wife to punish "Little Three" by legal means. According to Li Lizhi's lawyer, the behavior of the third party belongs to tort, which accords with the constitutive requirements of tort liability. Causing damage to the injured spouse together with the spouse of the wrong party. The legal or judicial interpretation should confirm the tort liability of the wrong party and the third party against the spouse's rights as soon as possible, and the third party should also be the responsible subject of divorce damages, which can be investigated during the marriage relationship or at the time of divorce. Through such legislative and judicial protection, marriage and family relations are not subject to illegal interference. Controversy is difficult to define. Marriage law bypasses mistress. During the revision of the marriage law, many people in the legal profession called for legislation to punish mistresses and extramarital affairs, and the voice of increasing spouse rights was very high. However, most sociologists hold the opposite view that marriage is based on feelings and the law should not interfere too much in emotional affairs. After fierce debate, the revised marriage law bypassed the sensitive topic of spouse rights. Lawyer Li said that there are many obstacles in legislation on the issue of accountability for mistress. When the 19th session of the Standing Committee of the Ninth National People's Congress (NPC) deliberated the revised draft of the Marriage Law, there were two different opinions on whether the law punished the "third party". One view is that the third party should be punished, because the third party is at fault for the breakdown of others' marriage. Another view is that the concept of "third party" is difficult to determine, and how deep it is to get involved in other people's marriage is considered as "third party"; What is the fault of a "third party"? Some "third parties" are also deceived and are victims in a sense; How to determine the scope of "third party" compensation? These complicated issues should not be stipulated in the law before they are clear. Some experts believe that marriage can not be defined by simple infringement or not, it has certain emotional factors, and it is not appropriate to "sue" a third party. Whether to use morality or law to adjust the behavior of the third party is controversial. There used to be a large number of scholars and judicial practitioners who believed that the pursuit of a third party would have a series of adverse social effects and could not protect the pursuit of life by family members whose feelings and marriage were inconsistent. The problem of the third party is a moral problem, which should be adjusted by morality, and the law should not replace it. The law can "force a couple to live together, but it is impossible to prevent them from living in strange bedfellows". Legal analysis? In life, the war between "big woman" and "little three" has always attracted much attention, and the ways of "struggle" are also different. Some people take pictures of catching the rape, others try to commit suicide ... Weibo declared war calmly, which attracted the attention of many netizens, and some even commented that it was this "fan" who treated mistress! Some netizens are indignant for her: "Is the derailed husband too lost? Tired of five years of extramarital affairs, ready to return to the family, suddenly become a' victim'? It's sad to prove your greatness by conniving at a man's infidelity ... "Either divorce gives way to a third party, or you have to face up to the harm of your spouse's infidelity, but it's difficult to investigate San Xiao's responsibility legally, and a little carelessness in obtaining evidence of your spouse's infidelity will lead to a lawsuit. The realistic dilemma has put many victims in a dilemma. Lawyer Li said that in the case of a "third party", it is difficult to grasp in practice how to obtain conclusive evidence in a legal way without infringing on the legal rights of others. The Tort Liability Law includes the protection of privacy for the first time. Without the consent of others, publishing other people's privacy materials or disclosing other people's privacy in written or oral form, causing damage to others' reputation, shall be dealt with according to law. According to this regulation, it is generally believed that as long as private photos are taken, private videos are recorded and seen by others without consent, the right to privacy is violated. Only when the parties take photos or videos in their own homes or public places to prove that their spouses live with a third party, and keep them confidential, and only use them as evidence in court, can this situation be considered as an infringement of privacy. In addition, according to "Several Provisions of the Supreme People's Court on Evidence in Civil Litigation": "Evidence obtained by infringing on the legitimate rights and interests of others or violating the prohibitive provisions of the law cannot be used as the basis for determining the facts of the case." In reality, few swindlers live in their own homes, basically renting or buying a house. When the victim takes his relatives and friends to collect evidence, it will inevitably lead to physical conflicts, restrict the personal freedom of others, and force the parties to take photos and videos by violent coercion or other illegal means. However, according to the above provisions, such evidence cannot be used as legal and effective evidence. Some parties employ detectives from the so-called marriage investigation company to assist in obtaining evidence, and the personnel of the investigation company often use methods such as stalking, sneak shots and stealing records to obtain evidence. According to the above provisions, the evidence is illegal and valid. Therefore, it is very difficult for the parties to take legal forms to obtain evidence and get court approval. Legal analysis? According to the provisions of China's criminal law, those who have a spouse cohabit with others in the name of husband and wife, or cohabit with others in the name of husband and wife knowing that they have a spouse, are convicted and punished for bigamy. Weibo revealed that her husband's mistress had existed for five years. Can an extramarital affair with a stable relationship for such a long time be regarded as a de facto marriage and punished with bigamy? Lawyer Li explained that even if an extramarital affair that has maintained a stable relationship for a long time does not live together in the name of husband and wife, it does not constitute bigamy. The crime of bigamy is objectively manifested in two situations: first, illegally obtaining marriage registration by fraud. That is, you have a spouse and marry someone else, or you know that someone else has a spouse and marry them. Second, those who meet the subject and subjective elements of bigamy, although not registered for marriage, openly live together for a long time in the name of husband and wife, forming a de facto marriage relationship with each other. "Living together in the name of husband and wife" is the boundary between crime and non-crime. Therefore, a long-lasting and stable extramarital affair cannot constitute legal bigamy if there is no evidence to prove that they live together in the name of husband and wife. As for whether such hard conditions are reasonable, Mr. Li said that different people have different opinions, and the wise have different opinions. At present, there is great controversy. "The key is the issue of proof. What is a long time? What is a stable relationship? What is the standard? This is difficult to define in law and evidence. If long-term and stable extramarital affairs are generally stipulated as bigamy without clear standards, it will cause more serious confusion and adverse consequences in judicial practice. " The contradiction between the civil and criminal provisions of de facto marriage. Lawyer Li said that the relevant judicial interpretations have different provisions on de facto marriage. The new Regulations on the Administration of Marriage Registration and Judicial Interpretation of Marriage Law (I) no longer recognize de facto marriage. However, at the criminal level, the Supreme Court gave a clear answer: "After the promulgation and implementation of the new Regulations on the Administration of Marriage Registration, people with spouses who live together with others in the name of husband and wife, or who know that others have spouses and live together in the name of husband and wife, should still be punished as bigamy." That is to say, de facto marriage has been denied in civil judicial interpretation, but it is clearly admitted in criminal judicial interpretation that de facto marriage should still be treated as bigamy, which leads to the contradiction between the two provisions in judicial interpretation. Lawyer Li Lizhi believes that in order to solve the identification problem of de facto marriage, the Supreme People's Court should re-introduce the judicial interpretation of de facto marriage and the crime of de facto bigamy, and make unified explanations and provisions on the meaning and possible situations of de facto marriage, the meaning and types of de facto bigamy and the relevant conditions that constitute the crime of bigamy. For example, it is a de facto marriage to live together in the name of husband and wife without registration by the marriage registration authority; You can even consider holding a marriage ceremony with others, openly as husband and wife, and having a relatively stable cohabitation relationship with others, such as living together for a long time (for example, lasting more than one year), having a fixed residence, living together with children, etc., as the specific circumstances for determining a de facto marriage. In this way, the inconsistency, contradiction and conflict between civil and criminal judicial interpretations can be avoided. In the process of determining factual bigamy, the difficulty lies in how to determine whether the parties live together in the name of husband and wife. For the identification of this problem, lawyer Li believes that in practice, various forms of evidence should be used, such as the relationship between the two people recorded in some forms filled out by the parties when buying a house, renting a house, installing a telephone, network, etc. , such as the birth of both parties, the signature on the notice of operation when the baby is born, the record in the column of parents on the baby birth certificate, etc. This can and should be noticed in the process of determining whether the parties live together in the name of husband and wife. "Of course, also can't belong to the moral and ethical adjustment of extramarital affairs are included in the scope of bigamy. Because only illegal cohabitation for the purpose of marriage, or in fact the personal relationship between husband and wife, can be called marriage in essence. Occasional extramarital sex and common cohabitation should be solved by virtue, party discipline and political discipline, and cannot be dealt with by criminal law. " Bigamy cases are mostly based on the assumption that people do not raise officials and do not investigate them. Even if Liu Liu's husband has lived with Xiaosan for a long time and is suspected of bigamy, Liu Liu is willing to tolerate the case of bigamy that can be prosecuted by the prosecution without criminal private prosecution. Can it be abandoned by the will of the parties? Teacher Li Lv said that the investigation organ accepts bigamy cases according to law and puts them on file for investigation mainly through two channels, one is the transfer by the people's court, and the other is the victim's complaint. From a legal point of view, if the investigation organ receives clues about the crime of bigamy, and the marriage victim does not report the case or private prosecution, the investigation organ shall file a case for investigation. Although according to the relevant regulations, the evidence provided by the victim is insufficient or there is no evidence, the people's court may transfer the case to the public security organ for handling. According to this article, public security organs should participate in the investigation of bigamy cases. However, at present, the police force of the public security department is insufficient, and the crime of bigamy is less harmful to society than other public security cases. Therefore, the investigation agency does not want to put more energy into it. Therefore, the public prosecution of bigamy cases is rarely used in judicial practice, and it is difficult to effectively punish bigamy crimes. Lawyers suggest introducing spouse rights from abroad. Lawyer Li believes that it is difficult to achieve the role of prevention and punishment simply by moral restraint, and it is not conducive to protecting the interests of victims. In terms of system, it is still necessary to amend and clearly stipulate the right of spouse and the civil tort liability of the third party in the marriage law. The laws of many countries stipulate the rights of spouses in different forms. In the United States, the right of spouse is protected by law, and the provisions are very extensive. The laws of some States clearly stipulate that as long as adultery damages marriage, a third party can be awarded compensation. In the civil law of civil law countries, there are also provisions on spouse rights and loyalty obligations. Among them, France, Switzerland, Japan and other countries believe that the third party and the fault party should bear joint liability, and the fault-free party has the right to compensation. The Civil Law of Taiwan Province Province in China regards the act of an adulterer violating the chastity obligation and infringing on the spouse's rights as an infringement, and gives the injured spouse the right to request solatium. In view of the secrecy of extramarital affairs, some countries and regions adopt presumption rules to determine the tort liability of the third party. For example, there are indirect ways to determine whether there is adultery in Britain. For example, if a man and a woman are in the dark, they will come out by car later, or register in a hotel in the name of husband and wife, the court will generally consider it adultery. In Taiwan Province Province, the crime of bigamy is determined by presumption. Like a man and a woman fooling around in a private room. As long as the original wife and the police find her hair and clothes messy during the rounds, it can be presumed that she has committed the crime of disrupting marriage and family, and the detained party will be criminally punished. In addition, the administrative punishment for third-party intervention can be increased; Appropriately relax the criteria for determining the crime of bigamy and increase the punishment of criminal law; Reforming the prosecution mechanism of bigamy cases, stipulating that the public prosecution system is the main part of bigamy cases, and the public security and procuratorial organs investigate and collect evidence according to their functions and powers, can avoid all kinds of disadvantages of the parties taking evidence on their own. J00 1