Civil Liability Regime Of Tort Between Husband And Wife Within Marriage

Hegel said:"The meaning of marrriage is a law of Ethics love."Marriage from the date of conclusion has been marked with moral stigma ,and adjusting the relationship between husband and wife must be rational and mandatory. When the tort took place between husband and wife, or consulting with each other or resorting to law, spouse should choose the principle of autonomy. When the softening of the moral, and the pressure of public opinion can not be bound violations, as the protection of civil right laws should be the last in the victims'needs to play a role. Chinese Marriage Law had given a great deal of rights to the legitimate spouse , but provisions were for the oath, no detail provisions, also no civil liability to relief in marriage. Most of the right exist in name only between husband and wife,it's urgent to perfect marriage. This article will discuss three parts.The first part provides an overview of the basic theory on infringement between husband and wife and their civil liability in marriage. First of all, through the introduction of general tort,the concept of tort between husband and wife is summed up that legally married couple spouses against the other's personal rights and property rights, so that the other's persons, property and even the spiritual are damaged. Compared to the general tort,tort between husband and wife is hidden, unknow boundaries and difficulty to obtain evidence.Then, I'll prove it's science to establish tort between husband and wife through the comments on whether to establish, but it's also nesseary to limt the liability.Third,the elements of tort between husband and wife are applicable to the elements of general tort,about on subjective fault, illegal acts, the facts and the causal relationship between damage,but it must give specil treat bacause of the specil subjuct.Finally,the relationship on application of the premise, purpose, scope, modalities and composition of elements between tort between husband and wife and compensation for divorce damages will be analyzed,it's necessary to acquaint the civil ability for tort between husband and wife in marriage .The second part focuses on the necessary to establish the civil ability for tort between husband and wife in marriage .First,the limition of missing tort between husband and wife and their civil liability in marriage is elaborated from legislation and reality to show the urgency,such as parts right without relief ,ways of relief are too narrow as well as the lag in judicial practice.Then,I analyze reasons for missing the system from conceptions,legislative ideas, legislation and judicature practice to prove the necessity to establish the system.Finally, I discuss the significance in order to show that the value of establishing the system.It will help fill the gap of Marriage to maintain its relationship with the relevant provisions of General Principles of Civil Law; enhance the awareness of women's independent personality to safeguard the stability of family relations;restrict tort between husband and wife to maintain civilization of the society.The third part deals with how to establish civil ability sysem for tort between husband and wife in marriage.First, the feasibility of establishing the system elaborate is elaborated: Equality between men and women is the ideological foundation of the system; separate proprety of spouse is the material foundation of the system; The rights in Constitution, the General Principles of Civil Law and Marriage between husband and wife and foreign-related legislation are the legislation foundation of the system. purpose and function of tort is the specifical foundation of the system.Secondly, the principle of establishing civil ability system for infringement between husband and wife in marriage is discussed in general.Such as avoiding active intervention by public power, coordinating material compensation and moral education, considing moral constraint and legal enforcement.Thirdly,the circumstances and civil liability of tort between husband and wife in marriage is listed on personal rights , property rights and exception provisions as well as defense reasons to desisn the system.