2. About adoption. First of all, C must meet the requirements of users. That is, "(1) has no children; (2) Having the ability to raise and educate the adoptee; (3) Not suffering from diseases that are medically considered unsuitable for adopting children; (4) At least 30 years of age. " C has children, which obviously does not match. Secondly, the adoptee is a child of A and B, and must also meet the requirements of the adoptee, namely: "(1) an orphan who has lost his parents; (2) Abandoned babies and children whose biological parents cannot be found; (3) Children whose parents have special difficulties and are unable to support them. " So it may be impossible for C to ask for adoption.
3. According to the provisions of the Marriage Law, if B files for divorce, C should first actively collect evidence of B's fault, such as evidence of bigamy or "the spouse cohabiting with others", in order to obtain the status of the innocent party in the litigation, and put forward a request to pay maintenance and claim damages in the litigation request. Basis for clockwork: Article 46 of the Marriage Law: "In case of divorce due to one of the following circumstances, the innocent party has the right to claim damages: (1) bigamy; (2) The spouse lives with another person; " However, the specific amount of damages is decided by the court, and the situation varies from place to place. In principle, it belongs to compensation for mental damage, and the amount will not be too high. In addition, because the child has mental retardation, it is possible that C will face difficulties in life, and he can ask for financial compensation in the lawsuit. However, the economic compensation is of a helping nature and the amount will not be too high.
Can a wife sue a "third party"
-A brief analysis of the divorce damage compensation system in China's marriage law.
Hubei zhangtang lawyer office
The postcode of Xinhua Xialu 9- 1, Hankou; 4300 15
[Abstract]: After the reform and opening up, concubinage, extramarital affairs and concubinage have risen in various places, directly challenging monogamy in China. In the process of amending the marriage law, there is a high voice calling for legislation to punish concubinage and extramarital affairs and increase spouse rights. Although many jurists are in favor of writing the right of spouse into the revised marriage law, most sociologists hold the opposite view that marriage is based on feelings and the law should not interfere too much in emotional affairs. After a heated debate, the revised Marriage Law bypassed the sensitive topic of spouse's rights and stipulated the compensation system for divorce mental damage in Article 46. In the process of divorce, whether it is compensation for infringement of spouse's rights or compensation for separation is not clearly stipulated in the marriage law, and few people in the legal field discuss this issue. In my opinion, because the revised Marriage Law does not clearly stipulate the spouse's right, the compensation for damages of the wrongdoer stipulated in it is actually a kind of compensation for damages caused by separation, and it cannot be targeted at the "third party" or "mistress". If a wife wants to sue a "third party" or a "mistress", it must also be clearly stipulated in the marriage law that husband and wife enjoy the right of spouse. At present, the judicial interpretation of the marriage law clearly stipulates that the subject of compensation for divorce damages is only the faulty spouse, and the wife cannot sue the "third party".
Keywords:: compensation for mental damage of divorced spouses' marital rights
In the legislative history of China, I'm afraid it's hard to find a legal amendment that can arouse the widespread concern and participation of the whole society like the Marriage Law. At the beginning of 2000, after the revised draft of the Marriage Law was published to the whole society for comments, the the National People's Congress Standing Committee (NPCSC) Law Commission alone received more than 4,000 feedback opinions, not including local legislatures. In addition, the central major media also collected more than 65,438+0,000 public legislative opinions. Subsequently, the Beijing public opinion polling agency carried out a nationwide survey on people's willingness to amend the marriage law. * * * In 3 1 provinces and cities except Hong Kong, Macao and Taiwan, a questionnaire survey was conducted among 73571adults over 8 years old. About 90% people clearly know the three principles of freedom of marriage, monogamy and equality between men and women, and 95.2% people know that the marriage law of our country stipulates monogamous marriage system. [ 1]
First, the wife took the third party to court.
Although most people in China know that monogamy is stipulated in the Marriage Law, social evils such as extramarital affairs, keeping mistresses, concubinage and whoring frequently occur in real life, and they are getting worse. With the discussion of amending the marriage law deeply rooted in the hearts of the people, the call for legislation to punish the third party is getting stronger and stronger, and some people have begun to put it into judicial practice. In 2000, Chongqing concluded the first case in which a wife sued a third party for infringement of spouse rights. The case is as follows: Plaintiff Zhou sued the People's Court of Yubei District, Chongqing on the grounds that the defendant Xie Guangping and her husband Zhang Changchun completely exceeded the relationship of ordinary gay friends, and requested the court to order the third person Xie Guangping to immediately stop interfering with his family, apologize and compensate 55,000 yuan for mental damages. According to the evidence provided by the plaintiff Zhou Zhizi, the court of first instance found that the defendant Xie Guangping was at fault for the disharmony of the plaintiff Zhou's family, and sentenced the defendant Xie Guangping to immediately stop infringing on the plaintiff Zhou's marriage and family relationship and apologize to the plaintiff. The defendant Xie Guangping refused to accept the appeal, and Chongqing No.1 Intermediate People's Court finally ruled that the case did not fall within the scope of civil cases accepted by the people's court, revoked the first-instance judgment and rejected the plaintiff Zhou's lawsuit. [2]
This is a case before the practice of marriage law, because it involves the controversial spouse right at that time, which aroused widespread concern at that time. In the same case, the judgments of the courts of first instance and second instance are quite different. The court of first instance ordered the "third party" to bear civil liability, but the court of second instance rejected the plaintiff's lawsuit. Why does the same case have such a completely different verdict? Because a "third party" should bear civil liability, it must be clear which rights she violated the plaintiff. At that time, the marriage law did not stipulate the duty of loyalty between husband and wife, let alone the right of spouse. If a "third party" infringes on the legitimate rights and interests of his wife, the infringer is her husband and his wife, and at least both of them are * * * infringers, they shall bear joint and several liability. Even if it is found to be infringing, what rights are infringed upon by the wife? Can the obligation of mutual loyalty between husband and wife be directed at a third person? These complex and sensitive questions cannot be answered in the marriage law. The court of second instance had to make a judgment to reject the plaintiff's claim when the law did not clearly stipulate that the husband and wife enjoyed the right of spouse.
Second, whether the marriage law should establish the right of spouse.
Spouse right has always been controversial in theory and practice in China, and the revision of marriage law once made it the focus of social attention. After the publication of the draft of the Marriage Law, the legal and social circles have completely different views on whether the right of spouse should be written into the revised Marriage Law.
Most people in the legal profession hold positive opinions. They think: "Husband and wife should bear the obligation of loyalty, which is based on the essential requirement of individual marriage and the concrete embodiment of monogamy. The essence of monogamy is to regulate the relationship between men and women. " [3] At present, "because the current marriage law of our country does not stipulate the obligation of loyalty and cohabitation, there is no corresponding sanction for the spouse who refuses to undertake the obligation of loyalty and cohabitation". [4] If "it is stipulated that husband and wife have the obligation of mutual loyalty, it will have a warning and deterrent effect on unfaithful parties and illegal actors involved in other people's marriages, and at the same time provide a legal basis for investigating illegal acts that infringe on legal marriage". In particular, it is extremely irresponsible for the state to ignore the marriage law and let the parties resolve their disputes by themselves. The punishment of these adulterers is clearly stipulated in most laws in western countries today. Therefore, "today, 20 years after the reform and opening up, legislators should righteously correct the right of spouse and stipulate the specific content of the right of spouse in the new marriage and family law". [5]
Sociologists have the opposite opinion. They believe that the duty of loyalty between husband and wife is a moral issue and cannot be enforced by legal means. Spouse right means that both husband and wife have each other's sexual rights, which is ridiculous! If marriage is to promise your sexual rights to your spouse at one time, is there still marital rape? Do all emotional problems need to be adjusted by law, and can the law control them? I also agree with this view, that is, the establishment of spouse rights may not solve the problem of "extramarital love", and advocate that the main reason for establishing spouse rights in marriage law is to help prevent and reduce "extramarital love" and consolidate the "monogamy" system, and once the spouse rights are violated, they can be punished in time. Because the important content of spouse right is the chastity obligation of both husband and wife, and its core is sexual exclusiveness. Having sex with any third person is a violation of the obligation of chastity and an infringement of the other party's right to chastity, which should be punished according to law. This is obviously a combination of moral norms and legal norms, which is not feasible in practice. Sexual behavior is based on feelings, which is an important difference between humans and animals, and feelings are not static. Every citizen enjoys complete human rights. Why once married, some of his human rights belong to his spouse? Why should a healthy and independent person have some human rights of another healthy and independent person? ? Marriage is the spiritual, sexual and material life of both men and women. Spiritual life, sexual life and material life are not and cannot be eternal during the existence of any couple. Husband and wife are based on feelings. If their relationship breaks down, can the law tie them together? Loyalty between husband and wife belongs to the emotional field and should not be enforced by law. Emotional disputes should be settled by the parties themselves. As for the establishment of spouse rights to punish "third parties", it is even more intolerable. The relationship between husband and wife is a piece of paper that can only bind both husband and wife. The adjustment scope of the marriage law is limited to the relationship between husband and wife and family, and it is impossible to extend it to other members of society. If the relationship between husband and wife breaks down, the fault can be blamed on the third person, who should be liable for compensation. Should the third party compensate the money wrongly after the husband and wife make up? Will this cause both husband and wife not to review their own faults, and once the defendant goes to court, everyone will put the blame on the third person? Is it because with a marriage certificate, husband and wife will unconditionally sell their lifelong feelings to each other?
In the process of amending the Marriage Law, some people not only suggested increasing the spouse's rights, but also suggested increasing the punishment provisions for violating the spouse's rights, such as "husband and wife have the obligation to be loyal to each other, and when one party is unfaithful to the other, the other party may request the public security organ to remove the obstruction". I don't think this kind of suggestion is desirable in theory and practice. First of all, in theory, it violates that the foundation of marriage is love, "binding does not make husband and wife." If a couple's relationship needs the police to remove obstacles, can it last long? On the contrary, it will aggravate the breakdown of some marriages that could have been saved. Because there are many reasons for marital disputes, a large part of them are still in the privacy category, or some are still in the privacy stage. Even if one party exposes some contradictions on impulse, it is often easy to reconcile before the outside world intervenes. Especially because of the irrational behavior in the state of passion, as long as one party suddenly repents, it can be understood and forgiven. Once the outside world is involved in the intervention of the special police, it may make it difficult to bridge the gap and even intensify the contradiction. Secondly, the public security organs often intervene in the ranks of "sex" and have no image of the people's police.
In this debate about spouse rights, the debate between jurists and sociologists is, in the final analysis, whether the relationship between husband and wife should be adjusted by law or morality. In 2000, this debate spread all over the country from the classroom to the society, from newspapers to the screen.
From 200 1 March 3 1 Sunday to April1Sunday, Hunan Satellite TV Life Channel hosted a large-scale activity of "Argument for Marriage-Dialogue between Experts and People" in Changsha, which is on the bank of Xiangjiang River. Participating in this debate are three famous jurists of the expert drafting group of marriage law-Wu Changzhen, Yang Dawen, Chen Mingxia and the famous sociologist Professor Zhou Xiaozheng. Within two days, four scholars had a heated discussion with ordinary people and scholars in other fields on several most controversial topics in the draft amendment to the Marriage Law, namely, spouse rights, extramarital sex, divorce, domestic violence and family property. In addition to jurists and sociologists, there are also doctors of law, judges, lawyers, writers, journalists and ordinary citizens. The most heated debate is whether the Marriage Law clearly stipulates that husband and wife enjoy the right of spouse. Although all parties have come up with sufficient reasons to demonstrate their views, it is still difficult for anyone to convince them. [6]
Third, what is the right of spouse?
Most concepts and systems of civil law can be found in ancient Roman law, and its development and growth process can be observed through the French Civil Code and the German Civil Code. However, the right of spouse and its protection system is a special case, and the concept of the right of spouse can not be found in Roman law, French civil code and German civil code (it is true that both ancient Roman law and ancient Germanic law stipulated the right of husband, but in modern times it eventually withdrew from the historical stage because of the reaction of the right of husband to gender equality). The concept of spouse's right was first put forward by common law countries, and it has been developed and improved. In common law countries, the right of spouse "is of great significance to express the legal and symbolic significance of marriage, because it can conceptualize various psychological elements that constitute the marriage entity, such as family responsibilities, husband and wife communication, mutual admiration, husband and wife sexual life and other factors, which are all general and legal." The laws of common law countries stipulate the right of spouse. In their view, the so-called spouse right refers to the right between spouses to ask each other for companionship, love and help.
. [7]
There is no accurate definition of spouse right in China's legal circles, and different scholars have different definitions of spouse right. To sum up, there are roughly the following viewpoints: first, the identity theory says that "the right of spouse is the identity right of husband to wife and wife to husband"; Second, companionship says, "Spouse right refers to the right between spouses to ask each other for companionship, love and help"; The third is the interest theory. "Spouse right refers to the basic identity right of husband and wife as spouses, which means that the identity interests of husband and wife as spouses are exclusively controlled by the obligee, and anyone else has the obligation not to infringe"; Fourth, the law says that "the spouse's right is the spouse's right given to the husband and wife by law in a legal marriage, and others have the obligation not to infringe"; Fifth, the theory of sexual rights says, "Spouse right is a civil right. If husband and wife are spouses, they have spouse rights, and the core feature of spouse rights is sexual rights. " [8]
What is the scope of spouse rights? Some scholars in Taiwan Province Province of China divide the validity of marriage into identity validity and property validity. Identity validity only includes husband and wife's surname, chastity obligation and cohabitation obligation. [9] As a member of the expert drafting group of the Marriage Law, Professor Yang Dawen believes that the right of spouse, as a kind of identity right, mainly includes the right of husband and wife's name, the right to decide their domicile, the right to live together, the duty of loyalty and property rights, and the duty of loyalty is one of the important contents of the right of spouse. [10] Ma Qiang, as a judge, believes that the right of spouse, as a basic identity right, should derive the following rights and obligations: the right of husband and wife's name, the right of residence, the obligation of cohabitation, the obligation of chastity and loyalty, and the right of agency in daily affairs [1 1].
Different jurists have different understandings of the scope of spouse's rights, but all of them, without exception, stipulate cohabitation obligation and chastity loyalty obligation as important contents of spouse's rights, which is also the most taboo for sociologists. People are emotional animals, and it is impossible to sell their feelings for a lifetime because of a paper marriage. The marriage law stipulates that the right of spouse and the obligation of mutual loyalty treat people as crops, which is a retrogression in legislation, which is equivalent to protecting the human rights of some people and infringing on the human rights of others.
4. Does the Marriage Law stipulate the right of spouse?
In view of the fact that the issue of spouse rights is too sensitive and the debate is too fierce, the new marriage law seems to be avoiding this issue. Article 46 stipulates: "If one of the following circumstances leads to divorce, the innocent party has the right to claim damages:" (1) Bigamy; (two) a spouse living with others; (3) committing domestic violence; (4) maltreating or abandoning family members. "
The Marriage Law stipulates fault compensation, which is based on the premise that husband and wife jointly enjoy spouse rights, or general civil damages. The marriage law is not clear, only that the trial shall be conducted in accordance with the relevant provisions on compensation for mental damage. Professor Yang Lixin believes that this article establishes the compensation system for mental damage caused by divorce fault in China's marriage law. Specific behaviors that infringe on the spouse's rights include bigamy, cohabitation with others, domestic violence, abuse and abandonment. [ 12]
I don't agree with Professor Yang Lixin that the essence of the fault compensation stipulated in the Marriage Law should be the compensation for divorce damages, not the compensation for mental damages that infringe on the spouse's rights. Scholars in Taiwan Province Province believe that there are two kinds of divorce damages, one is divorce damages, and the other is divorce damages. When one spouse's behavior constitutes an infringement on the cause of divorce, the other spouse may request compensation for the damage caused by the infringement. For example, killing each other's life, body or personality, or bigamy, adultery, etc. Both belong to separation injuries. Divorce damage is different from separation damage, and it does not have the constitutive elements of tort. Divorce itself is the direct cause of damage. For example, if one spouse is sentenced to more than three years' imprisonment or maltreats the immediate superior relatives of the other spouse, it does not constitute infringement on the other spouse, but the other spouse can still claim damages.
There are obvious differences between divorce mental compensation and divorce mental compensation. First of all, these two components are different. The essence of spiritual compensation for divorce is the cause of divorce, such as abuse, abandonment, infidelity and other acts constitute infringement, which is enough to reduce the injured party's existing evaluation, infringe on the injured party's expectation of normal marriage life, lead to their anxiety about their future life, and the emotional pain caused by the loss of their daily custody and common life due to divorce, so the infringer who implements divorce pays spiritual compensation. Therefore, it must meet the constitutive requirements of tort. The spiritual compensation for divorce damage is not caused by tort, but by divorce itself. According to the tort theory, there are still some deficiencies in the legal composition of this kind of mental damage, so it is more appropriate to interpret it as a legal protection policy to relieve the damage caused by divorce. The earliest provision for this kind of damage is the Swiss Civil Code 1907. Later, the Marriage Law of Nordic countries 1920, the Civil Code of Taiwan Province Province 193 1, and the French Civil Code 194 1 all have provisions. For example, as stipulated in Article 2 16 of the French Civil Code, if the fault of divorce lies entirely with the husband or wife, damages can be awarded to the other party to make up for the material and spiritual damage suffered by the other party due to the dissolution of marriage. Paragraph 2 of Article 15 1 of Japanese Civil Code stipulates that when an irresponsible spouse's life is seriously damaged due to divorce, the judge may allow him to ask the other party for a certain amount of solatium.
Secondly, the application of the law is different. Compensation for mental damage caused by damage is requested in accordance with the provisions of the Tort Law, which belongs to the provisions of the Property Law; Although the compensation for mental damage caused by divorce damage does not meet the requirements of tort, you can also request compensation, which is a special provision in the Relatives Law. [ 14]
There is no relevant law in China like Taiwan Province Province, so we can't directly quote the concept of divorce damages in Taiwan Province Province. Does it mean that the liability of the wrong party stipulated in Article 46 of the Marriage Law is based on the mental damages of the spouse's right, and there is no concept of divorce damages? No, at present, the marriage law of our country does not clearly stipulate the spouse's right, and the damage compensation borne by the wrong party as stipulated in Article 46 does not belong to the compensation for mental damage caused by infringement of the spouse's right. There is a simple reason. If one spouse's actions that undermine the stability of marriage and family, such as keeping mistresses and extramarital affairs, infringe on the rights of the other spouse, why does the current law limit the obligor of mental damage compensation in divorce to the spouse who is at fault, and not pursue the responsibility of the third party? According to the general theory of tort law, in addition to the husband, there are "mistresses" and "third parties" who infringe on the wife's spouse rights. They are * * * the same infringer, and shall bear the joint liability of * * * the same infringer. Because theoretically speaking, the absoluteness of the spouse's right determines that anyone other than the spouse is the obligatory subject of the spouse's right and has the obligation not to infringe the spouse's right. If a third party infringes on the spouse right of the innocent party in a legal marriage relationship, the victim shall have the right to claim damages from him. The Marriage Law strictly stipulates that the obligor of divorce compensation for mental damage is the faulty spouse, which shows that the law excludes this kind of compensation based on spouse rights. Although Professor Yang Lixin thinks that "in the relationship of damages caused by bigamy and cohabitation with others, it is entirely possible to claim damages from the other party of bigamy and cohabitation, because they are the same actor of the tort, constitute the same tort, and are responsible for compensating the victims' losses [15], this is only a scholar's view and has not been recognized by the Marriage Law.
Fifth, it is difficult for a wife to sue a "third party"
Before the marriage law was amended, many people hoped to punish the increasingly serious ugly phenomena in society such as extramarital affairs, keeping mistresses, whoring and concubinage by amending the marriage law. When soliciting opinions on the revision of the marriage law,
The Guangdong Women's Federation once suggested that the revised Marriage Law should punish "keeping mistresses" and "third parties", and that the man who is at fault should bear legal responsibility, and the third party who intentionally infringes on the property rights of marriage and family and his spouse should also bear legal responsibility. Many people in society also hold the same view that it is ultimately up to the law to eliminate this ugly phenomenon.
Marriage is different from other social relations. Its establishment is based on feelings, and its dissolution is also based on whether feelings are broken. It is very naive and ridiculous to think that adding a rule to the law can bind husband and wife together. Because of this, the revised marriage law strengthens the property protection of the innocent party in the marriage relationship, and does not stipulate the rights of husband and wife, let alone that the wife can pursue the civil liability of a third party. This is the requirement of advocating the protection of human rights and personal freedom in modern society. Law can only regulate people's behavior, but not their emotions.
Although there are still many people in the legal profession calling for the establishment of marital rights in China, it is not easy to establish a system of marital rights in line with China's national conditions. After the Marriage Law was amended at the 21st meeting of the Standing Committee of the Ninth NPC on April 28th, 2006, the Supreme Court promulgated the Interpretation on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China (I) on February 24th, 2006. Article 29 of the Interpretation stipulates that this judicial interpretation is the subject liable for damages as stipulated in Article 46 of the Marriage Law, which excludes the possibility that the wife may sue a third person. Therefore, it is difficult for a wife to sue a third party at present.
Some people think that the introduction of this judicial interpretation has made an inappropriate restrictive interpretation of the unclear provisions of the law, which has restricted the effectiveness of the divorce damage compensation system, resulting in the lack of legal provisions for the third party to destroy the marriage and family relations of others in China's marriage law, and the punishment for the third party's participation in destroying other people's families in judicial practice is obviously insufficient. This view seems to have some truth, but there is a problem that it cannot avoid. What is the basis for punishing the third party? Is the spouse right between husband and wife the same as property right? Have the right to the world and the sacred and inviolable nature? If so, who dares to get married? As long as one party files for divorce, it is easy for the other party to seek compensation from a "third party". How to protect the rights and interests of others?
Concluding remarks
Emotion is a category of moral regulation rather than legal regulation. Moreover, the relationship between husband and wife is not a property ownership relationship, and it cannot become the property of the other party just because the husband and wife get a marriage certificate. The law cannot sacrifice the legitimate rights and interests of others because it needs to protect the rights and interests of some people, so it is a very wise choice not to clarify the spouse rights in the marriage law. When we see the injured wife in tears, we can't transfer our anger to the third person, because divorce is a matter for both husband and wife, and the third person is a trigger at best. We can't impose all the responsibility for the breakdown of the relationship between husband and wife on the third person, and let her bear the responsibility of saving the family and compensating for the damage.
It may be sad that a wife can't sue a third party, but what the law wants to protect is the rights and interests of everyone. The revision of the marriage law fully takes this into account, so there is no impulse to stipulate spouse rights. This is the embodiment of rational legislation. From this perspective, this may be an improvement of the legal system.