Fraudulent Maintenance Of The Defrauded Person Study On Civil Remedies

Due to people’s increasing tolerance of "sexual culture",the phenomenon of cohabitation before marriage and infidelity within marriage is common,and the probability of fraudulent parenting has also increased.However,the current legal system in China lacks specific legal provisions on fraudulent maintenance,which makes judges have no unified legal basis when facing the claims of defrauded persons,and the different causes of cases lead to very different judgment paths for judges;Paternity denial proceedings used to deny paternity do not exist in practice as a precursor to fraudulent maintenance;the subject of the fraud and the subject of the fraud are not clear;In the case that the fraudster refuses to conduct a paternity test,the standard of proof for the evidence submitted by the defrauded party shall reach a high degree of certainty,and the risk that the defrauded person will not be able to provide evidence is relatively large,which is not conducive to the relief of the defrauded person;The return of alimony during marriage and the calculation criteria for its amount in property relief remain unclear;The criteria for calculating the amount of compensation for moral damage need to be further refined and improved.Through the analysis of basic civil theory,the fraudulent maintenance of the fraudster violates the property rights and interests and general personality rights of the defrauded person,and should be regarded as a tort.When the victim of the fraud seeks relief,the denial of paternity is bound to become one of the core demands of the defrauded,and under the premise of denying paternity,it is conducive to the remedy of infringement and the remedy of divorce property division for the defrauded.There is no doubt that the defrauded male is the subject of the claim,but in the event of the death of the man or the loss of guardianship capacity of both the man and the woman,the grandparents,as the actual caregivers,can claim rights as the subject of the claim;Whether the biological mother of the dependent person can bear the obligation to compensate as the subject of responsibility,and whether the biological father can bear the compensation for moral damage as the subject of responsibility should consider the time when the fraudulent upbringing occurred,and during the period of non-marital cohabitation,the defrauded person and the biological mother have no duty of fidelity in marriage,so it should be considered whether the biological father has subjective intention;During the marriage,the biological father’s behavior undermines the stability of the family,so it is not subject to subjective mentality and should be the main body of responsibility.When the defrauded person claims that a third person has a paternity relationship with the dependent,the burden of proof should be reversed on the basis of providing its prima facie evidence;For evidence that is only defective in the evidentiary procedure or the carrier is defective,the standard of proof should be lowered to reduce the risk of the defrauded person losing his right to relief.It is clear that the return of maintenance expenses during the marriage should not be ignored because of difficulties in judging the amount,and when the amount is difficult to prove,it shall be calculated year by year by using half of the per capita living consumption expenditure of urban residents in the local area as the standard,and the value-added part of inflation shall be taken into account.The calculation of the amount of compensation for moral damage shall also take into account factors such as the subjective fault of the fraudster,the length of time raised for the child,and economic conditions,and divide into four levels of damage to determine the amount of compensation for moral damages.