The Protection Of Spouse's Right Through Civil Law And Its Perfection

In recent years, with the constant advancement of reform and opening-up, and the further development of socialist market economy, the material life of the society of our country and spiritual civilization undertake notable improvement. Along with the development, some negative influence was brought about. In the fields of marriage and family, a lot of new problems have been presented, the conjugal relation faces new crisis. Some behaviors as bigamy, cohabiting, adultery, etc. are on the rise and violate spouse's right. Spouse's right is an important identity right, it concerns the interests of the couple and other kinsfolks, even concerns the interests of the whole society. It is essential to maintain social stability, economic development and moral system.Therefore, it is of realistic significance to punish the behaviors, which violate spouse's right, to protect the interests of the litigant in legal marriage. This paper is divided into three chapters: Chapter one Summary of Spouse's Right This chapter offers analysis and discussion of the concept, meaning, legal features and specific content of spouse's right. Different scholar offers different definition for the spouse's right from different point of views in their process of research. Based on the comparison of the scholars'different understandings about spouse's right, I present my own opinion, which holds that spouse's right is enjoyed in accordance with the law because of the legal marriage relation. It takes the spouse's identity right as its object, equates their identity interests, and it is an identity right, which allows no violation from the other party or others. The meanings of this right are as follows: 1. spouse's right regards the couple's identity as its prerequisite. The subject of right can only be the couple. The right cannot be inherited and transferred and only lasts in the duration of effective legal marriage. 2. the object of spouse's right is the couple's identity interests. It displays in the interests reflected from the spouse's living together, mutual dependence and mutual support to maintain the satisfaction and happiness of marriage. 3. the aim for the establishment of this right is to maintain the healthy development of the conjugal relation to ensure the couple to live healthily and orderly. 4. spouse's right is the right stipulated by law. Compared to other civil rights, it has such legal features: abstractness, an organic whole of rights and obligations, the double attribute of absolute ness and relativity, passive antagonism. Different scholar has different opinion to the specific content of spouse's right. This paper limits the identity right nature of spouse's right. And holds that the main content of the right includes: the rights and obligations of cohabitation, the rights and obligations of loyalty, the power to make decision of the residence, the attorneyship of daily family matters and parenting right, this paper analyzes the necessity for the establishment of the system of spouse's right as well. Chapter two The Protection of Spouse's Right through Civil Law This chapter discusses the constitutive requirements for the violation of spouse's right, infringing acts of spouse's right and the civil liabilities of the violation of spouse's right. I think the infringing act of spouse's right belongs to general infringing act and it has four constitutive requirements: illegal activities, facts of damage, the causative relationship between illegal activities and facts of damage and subjective fault. The infringing act of spouse's right can be divided into two types: outside and inside infringing acts according to different subjects of infringing act. For the outside infringing act the subject comes from the third person beyond couple. The concrete behaviors are as follows: adultery, cohabitation, bigamy behavior, and other common ones like luring a spouse to live apart, alienating conjugal relation, etc. The inside infringing act is the infringement taken by one party of the couple towards the other party due to the violation of marriage obligations. For instance, one party of the couple abuses the attorneyship of daily family matters, does not fulfill the obligations of cohabitation, or violates the parenting right. The more typical activities are: family violence, maltreatment, and abandonment of the spouse. Taken the violation of faithful obligations of couple as example, civil liabilities for the violation of the spouse's right are discussed. There are three ways to assume the liabilities: stop the violation, apologize and compensate for the losses. Hereby, the author of this paper focuses his discussion on the compensation for spiritual loss. The prerequisites for the compensation for spiritual loss are: the victim asks for the compensation for spiritual loss, thecompensation is in accordance with laws, and there is no other available ways to assume the liabilities. As for the scope of the compensation for spiritual loss, the compensation for divorce damage in accordance with the law is applicable, and when a third person is concerned and violates the spouse's right with the faulted spouse, the other part of the couple can ask for compensation from his or her spouse and claims the right toward the third person. The law should make it permissive when the victim asks for compensation towards the third person without the investigation of his or her spouse's liabilities. As for the sum of the compensation for spiritual loss, the judges should execute the right of discretion according to the stipulations in "on confirming the explanations for several questions of the responsibility of compensation for spiritual losses in civil infringe" of the Supreme People's Court. Chapter three The Legislative Deficiency of Spouse's Right and Its Perfection This chapter mainly discusses the deficiency of the protection of spouse's right in present Chinese Marriage Law and offers suggestions for legislative perfection. The legislative deficiency in China lies in: firstly, the stipulations on the infringing act s of spouse's right are not comprehensive; secondly, the stipulations on the subjective scope of the compensation for the loss are too narrow; thirdly, the stipulations on the responsible forms of the violation of the spouse's right are too unitary; fourthly, the stipulations on the lawsuit time for the violation of the spouse's right are improper. At the end of this paper, the author offers his suggestions for the perfection of the legislation of the spouse's right in China. Firstly, the qualities and specific content of the spouse's right should be definite. It should be stipulated in the law that spouse's right is an independent identity right, and the subjects of this right are the two parties of the couple in legal marriage. For the future legislative process of the perfection of the marriage law, the specific rights of the spouse's right should be definitely stipulated by way of illustration and generalization. And the specific situations of the violation of the spouse's right should also be clearly stipulated. Secondly, the protection of spouse's right through civil law should be definite. It should be stipulated that nobody is permitted to violate the spouse's right by any means. The violation of spouse's right due to faultsshould be stipulated to assume tort liability according to the tort law in Civil Law. Thirdly, it should be clearly stipulated in the marriage law the ways to assume civil liability for the violation of the spouse's right. The first one is to sentence the inflictor to assume the civil liabilities as stopping violation and apologizing, etc. the second way is to sentence the inflictor to compensate the losses. Namely, the spouse, who violates the right, and the third person should compensate the victim's property and spiritual losses with their own property according to law.