Study On Third Party’s Tort Responsibility Of Encroaching On Marriage

Marriage and family relations are the most common kinds of social relations, thestability of marriage and family directly relates to the whole society’s stability andharmony. With the rapid development of society, our opinion about the marriage andfamily are also changed,"extramarital affairs" and other words came to our minds, thewhole society started discussing on this topic. The third party destroying the originalspouse relationship, is no longer only a moral issue, it should be further promoted tolegal problems. Because of the lack of regulation, the spouse rights cannot beguaranteed sufficiently. Thus, the victim spouses resort to self-defense, which furtherharm the whole society.This article mainly divides into several parts. First of all, it summarizes the extramaritaladultery. It explains what are infringement behaviors of marriage, what are thecharacteristics and types of these behaviors, and concludes the rationality of the liabilitythrough the observation of the objects in the infringement by a third party. Second, itdiscusses the specialty of this kind of infringement. It analyses the theory of how toallocate the responsibility, including who can allege the rights, who will bear theresponsibility, how to bear the responsibility, and the damages. Finally it analyses thecondition of our legislation on this topic. It finds out the shortage of our legislation,brings out the methods to improve our legislation through analyzing the relatedlegislation in another countries. I hope to work with people from all areas to emphasizethis problem to the legislature. In this way, it will help our legislation to be better.There are many theories around this topic. Some scholars think that the behavior of thethird party should not be regulated by law, because this should belong to the moralissues. Regulating by law would excessively interfere in the private lives, which wouldinfringe on people’s privacy. There are also scholars who believe that a third party’sinfringement upon marriage is not only a moral problem, instead it should be regulatedby law. The moral regulation cannot punish the infringers. There must be some legalpunishment to prevent the infringement. Although, everyone has their rights, thereshould be some limitation on exercise their rights. It is because the lack of rulesregarding this area that makes the infringement so rampant in our society, and the rights of the original spouses cannot be protected. Therefore, the infringers should be heldresponsible for their behavior.I agree with the second theory stated above that the law should impose harsh penaltiesto the infringers. There is no legislation on this topic in China. I suggest that thelegislature should add the regulation regarding the infringement on marriage to the TortsAct. In that way, there would be a systematic regulation on this topic, including thebasic elements of this tort, how to allocate responsibilities, who will be held responsible,and the way to recover damages. Thus, the courts will have the legal basis to hear thiskind of cases. Improving this kind of regulation will deter the infringers to protect therights of original spouses. Moreover, it will help to improve our legislation. Finally, itwill make the controversy being resolved legally.