Marital Rape From The Perspective Of Civil Law

This article mainly discusses the double-attributes of marital rape, namely breach of contract and tort. Marital rape is a breach of contract, because the essence of marriage is a contract; Marital rape is a tort, because the person who commits marital rape violates the spouse's basic human rights ----sexual right. Besides, the author brings forward advice on regulating marital rape in the present law.There are four chapters except Preface and Conclusion . Each will be seperately summarized as following:Chapter 1, First of all, on the basis of refering other countries and areas'legislations, the author puts forward the new concept of marital rape that is different from others before. Secondly, the author describes the current situation and cause of martial rape.Chapter 2, The main viewpoint in this chapter is that marital rape is a breach of contract, because it breaks the marriage contract. Above all, the author thinks that the essence of marriage is a kind of contract. Then the author discusses the marital rape from the perspective of marriage contract, the history of spouse's rights of sex request and the present marriage law.Chapter 3, The main viewpoint in this chapter is that marital rape is a tort, because it violates the spouse's sexual rights . In this chapter, the author explains why sexual rights are the basic human rights and the content of sexual rights. Then the author points out that marital rape violates the spouse's rights of sexual freedom, rights of sexual equality and rights of pursuing sexual happiness.Chapter 4, In this chapter, the author first points out the shortcomings of our present law about regulating marital rape, namely the absence of rights and obligations of cohabitation in the marriage law, the absence of marital damage compensation and the simple legislation in anti-family violence. Then the author puts forward pieces of advice, establishing the system of rights and obligations of cohabitation in the marriage law, establishing the"Separation System"in the marriage law, establishing the marital damage compensation. What is more, it is hard for the plaintiffs in cases of matital rape to prove the damage, so the author thinks it should take specific rules on special proofs.