Study Of The Legal Issues About Fraudulent Raising

Fraudulent raising generally refers to the behavior of men raising others’ children without understanding the truth. Currently, civil actions caused by such behavior have been frequently occurred in practice, but few relevant regulations have been development by the existing law of China. In judgments of such cases that are well documented, the author finds out that victims of the fraudulent raising often propose three relief requests to the court, namely, divorce, alimony return and compensation for mental damages. Although the judicial work is difficult to be conducted because there is no legal basis, judges mostly support the claim of victims appropriately on the basis of clear facts and positive evidence. By clarifying what the legal nature of fraudulent raising is and how the issue should be handled as the original intention, this paper is expected to promote the legislation improvement about fraudulent raising in the future.In addition to the epilogue, this paper is divided into 5 parts.Part one is about the proposal of the problem. Through the analysis about the judgment basis and judgment results in some practical auctions, this paper puts forward embarrassing judicial problems including the disordered legal basis and reasonable but illegal judgment results in fraudulent raising litigation, and it is reckoned that the problem is mainly caused by the lack of relevant supporting laws in China.The concept and features of fraudulent raising are discussed in the second part. The paper first summarizes three definitions to fraudulent raising by the scholar circle, and then gives its own definition to such behavior. It is considered that subjects of the fraudulent raising relationship should be restricted to biological fathers, biological mothers and foster fathers but the time factor can be expanded to the cohabitation period, marriage duration period and the period after divorce. At last, features about fraudulent raising are summarized by the paper.Part three gives an analysis about the legal nature of fraudulent raising. First, it briefly introduces and elaborates five theories in the scholar circle at present, that is, unjust enrichment, negotiorum gestio, noncompliance, ineffective acts and infringement acts. The author confirms to support the view of Professor Yang Lixin, thinking that fraudulent raising is a kind of compound infringement act. Relevant reasons have been analyzed: fraudulent raising is in line with the four elements constituting infringement and is helpful to resolve the compensation issue about mental damages narrated in the paper below; At the end of this part, the constitutional elements and exclusive elements are elaborated in detail. This paper advocates excluding partial or all responsibilities about the damage compensation in four cases, that is, the biological father has no major faults, the victim has not fulfilled and the raising business, the victim has not actually performed the raising obligation, and the victim has not made a claim before the expiration of the auction time.The fourth part is about the study of alimony return about fraudulent raising. It seems alimony return is simple, but actually the legal basis of it is unclear and its practical operation standard is different. This part is the two major problems discussed. First, it overturns the consideration of taking unjust enrichment as the return basis by the scholar circle. Then, the unreasonableness of regarding the default responsibility of identity contract as the return basis is analyzed. After that, the author’s own opinion is proposed. It is considered that the essence of alimony return is a kind of compensation responsibility after the victim’s property right is infringed by the fraud side. Finally, it is proposed that the return amount of alimony should follow the principle of “taking negotiated determining as the priority and legal formula determining as the backup solution”. The legislative suggestion that the legal calculation formula should be unified as soon as possible is also put forward. The paper summarizes and elaborates several common formulas used in the judicial practice. The “20% fixed income of the fraud × months of child raising” and “annual per capita disposable income of urban(rural) households ×30%÷365× days of child raising” are recommended to be taken for the standard formula legislation.Research on the mental damage compensation in fraudulent raising is conducted in the fifth part. First, it argues the necessity of applying mental damage compensation in such cases lies in the need of soothing victims’ mental pain and adhering to the legalism of spiritual damage compensation. Second, the specific gains and losses of both sides should be taken into account to determine the amount of mental damage compensation, and the legal interest of healthy development of juveniles should be balanced. In other words, the reference factors in determining the compensation amount of mental damages are listed and concluded. Finally, the problem that the compensation amount of mental damages in practical fraudulent raising cases is low is pointed out. The following legislation suggestions are made: the returned alimony can be taken as the cardinal number of the compensation amount of mental damages in fraudulent raising, and the calculated amount of disability compensation amount specified by the law can be taken as the upper limit.