配偶权侵害的赔偿责任及正当性基础

Liability and Justification Basis of Spouse Right Infringement

以忠实义务为基础的配偶权属于受侵权法保护的民事利益。当该利益被侵害时,婚姻中无过错方有权向过错方主张婚姻法上的损害赔偿,并由法院依据利益权衡规则决定其是否有权向违反注意义务的过错第三者主张侵权法上的赔偿责任。过错方与第三者所承担的赔偿责任之间的关系,依据数人侵权场合中的意思联络情形区分为连带责任和按份责任,由无过错方选择主张承担相应赔偿责任的责任人,并由其承担相应法律后果。无过错方对过错方主张损害赔偿不受普通诉讼时效限制,应依据婚姻法确定时效限制规则。这种将精神损害纳入可赔损害范畴、强化过错方与第三者的连带责任以及限制普通诉讼时效适用的方式,实质上反映了我国历史上一直以来否定并制裁危害婚姻家庭之行为的传统法制观念对当代法律实践的影响。

Could the tort law apply to the spouse right infringement or spouse relationship infringement？ If it can, then how？ These questions have always been the focus of tort theories in China. However, the relevant studies do not reach agreement on this issue. Consistent with the divergences in theory, there are also disagreements in the Chinese judicial practice in resolving cases of spouse right infringement, threatening the certainty and predictability of legal rules and impacting the dignity of the law itself. In this context, it is of practical value to examine the basic positions of the existing tort law against the rules and the legitimacy governing the issues. spouse right infringement, the specitic protection In fact, in the current tort law, even if the spouse right are not clearly recognized by the statute law, it can, through law interpretation, still be protected by general clauses such as Article 6 in conjunction with Article 2 of the Tort Law of the People＇s Republic of China, Article 106 Paragraph 2 of the General Principles of the Civil Law of the People＇s Republic of China or Article 120 in conjunction with Article 11 and Article 8 of the General Provisions of the Civil Law of the People＇s Republic of China and so on. The compensation rules established by Article 46 of the Marriage Law of the People＇s Republic of China are special provisions and should take priority over general clauses in dealing with relevant cases. According to Article 46 of the Marriage Law of the People＇s Republic of China and relevant judicial interpretations, the unerring party has the right to claim damages against the erring party based on Article 6 in conjunction with Article 2 of the Tort La^w of the People＇s Republic of China, Article 106 Paragraph 2 of the General Principles of the Civil Law of the People＇s Republic of China or Article 120 in conjunction with Article 11 and Article 8 of the General Provisions of the Civil Law of the People＇s Republic of China, the unerring party has the right to claim damages against the third party who violates the duty of care. Since the acts of the wrongdoer in the marriage who is liable for compensation and the third party who infringes the spouse right involve two or more persons in committing torts, they then, in accordance with Article 8 or Article 12 of the Tort Law of the People＇s Republic of China, should assume joint and several liability or proportionate liability. If the unerring party only files tort liability claims against the third party and gives up claim for compensation against the erring party, the unerring party＇s right to claim for compensation cannot be negated and it is necessary to determine whether the third party should assume tort liability according to the general provisions of the Tort Law. The right to claim damages for the spouse right infringement, of course, is subject to the system of limitation of action. The application of this system requires a balance between the freedom and the protection of marriage and family. When the unerring party claims damages against the third party according to the Tort Law, the limitation of action should be that stipulated by the first half sentence of Article 135 of the General Principles of the Civil Law of the People＇s Republic of China （Paragraph 1 and the first sentence of Paragraph 2 of Article 188 of the General Provisions of the Civil Law of the People＇s Republic of China）. When the unerring party claims damages against the erring party in accordance with the Marriage Law of the People＇s Republic of China, the limitation of action should be the one stipulated by the last part of Article 135 of the General Principles of the Civil Law of the People＇s Republic of China （the second sentence of Paragraph 2 of Article 188 of the General Provisions of the Civil Law of the People＇s Republic of China）. China＇s tort law, when dealing with cases of spouse right infringement, usually takes a highly stringent attitude. This is consistent with the traditional Chinese legal system and the corresponding social values. Even though the modern social life and the corresponding legal system in China have undergone profound changes, the traditional factors are still hidden in the people＇s ideas and daily life, influencing the contemporary legal practice in various case of spouse right infringement, the judicial practice punishes the act of inf supporting the unerring party＇s right to claim damages, which is at present in line natural feelings and has its legitimate basis. punishment for infringing spousal relationship ways. In the rln wi However, as times change, emotions may give way to freedom itself.