The Dilemma And Solution Of Spouse’s Claim For Tort Compensation From The Third Person

The third party’s involvement in a family is intolerable for social ethics.For the third party’s infringement of the spouse’s rights,although the crime of bigamy can punish them in the criminal law,the requirements for the subject of crime are too high,which are limited to the third party who marries up with the spouse or lives with and bears children together.Moreover,based on cracking down the crime and maintaining social order,though the crime is punished,the violated spouse doesn’t get appropriate material and economic compensation.In civil law,the protection of spouse’s rights is not clearly stipulated in the marriage law in China,although the tort liability law contains the spirit of spouse’s interests,it is difficult to be cited in judicial practice to protect spouse’s rights because the tort liability law only protects the rights explicitly listed in this Law.In the whole civil law system,it is difficult to find a specific claim basis to protect spouse’s rights.The reason lies in the unclear definition of the concept of "spouse right" in theory,and the lack of correct legal basis and proper path to strengthen the protection of spouse right in judicial practice.At the time of codification of civil code,the existence of divorce calm period,which is difficult to be ignored in the three drafts of marriage and family draft,is obvious that legislation will become an essential procedure in divorce by agreement.As the opponents of the establishment of a calm period of divorce,the author believes that the establishment of a protection mechanism for the rights of spouses can better respond to the voice of the people,ensure the stability of marriage and family,and meet the needs of socio-economic and moral development than the establishment of a calm period of divorce.This paper will explore the necessity,practical difficulties and practical solutions to the application of the right of spouse in the current law.It is feasible to add the protection of the right of spouse in the tort law and to include the compensation for the damage to the right of spouse into the scope of the compensation for mental damage.