性爱与婚姻的困惑——“第三者”民事责任的理论与现实之探讨

Puzzlement of Sexual Love and Marriage——A Discussion About the Theory and Practice of Civil Liability Caused by a Third Party

是否应对第三者课以民事责任成为这次婚姻法修改论争的焦点。笔者认为 ,追究第三者的法律责任缺乏理论支撑 ,又缺乏现实基础。目前理论上所提出的配偶权 ,以及由此生发出来的同居义务、贞操义务均无法诠释第三者的法律责任。从现实上来看 ,第三者问题广泛而且复杂 ,第三者概念模糊难以界定 ,其程序也具有不可操作性。因此 ,第三者问题由道德调整是较为现实的选择。

One of the points at issue about the amendment to Marriage Law is that whether a civil liability should be imposed upon a third party. The author believes the viewpoint that a third party should be investigated under the law is lacking for theoretical support and realistic base. The theory about consortium and duty of cohabitation and duty of chastity in Marriage Law can hardly find a way to investigate the legal responsibility of a third part. According to the social reality at present, the relevant problems concerning a third party are popular and perplex, the concept of a third party is difficult to be defined. And so, the procedure of enforcement is non-operative. According to the facts above -discussed about, the factum juridicum of a third party is readjusted by morality is a more suitable choice.