夫妻忠诚协议审判问题研究

A Study on the Trial of Couple’s Loyalty Relationship Agreement

对夫妻一方因违反忠诚协议产生的纠纷,各地法院裁判思路尚未臻一致,在性质认定、请求权基础、效力判断等方面均存在误区,导致此类判决说理部分缺乏说服力或产生同案不同判等问题。违背夫妻忠诚协议系侵权行为,适用侵权责任法和精神损害赔偿的有关规定;《婚姻法》第4条、第46条以及约定拟制的解释,为夫妻忠诚协议的可诉性提供了法律依据;夫妻忠诚协议是过错方对侵权责任承担方式的承诺,分为财产责任承诺和非财产责任承诺,依据《民法总则》第143条之规定分析效力。

The opinions of judges about the disputes of loyalty relationship agreement in various courts are different. There are many misunderstandings about nature of the agreement, basis of claim, validity, etc. Thus, it leads to numerous problems that caused the civil judgment is unconvincing, different judgment in the same type of case, etc. In fact, the act that defend loyalty relationship agreement is tort, and we need to use the tort law and the rule of mental injury to deal with practical problems, instead of contract law. In combination with Article 4 and article 46 of The Marriage Law, and the institution of legal fiction under consensus provide legal foundations for the justiciability of the loyalty relationship agreement. Loyalty relationship agreement is a commitment which shoulder the tortious liability,including property commitment and non-property commitment. To analyze the effectiveness of the loyalty relationship agreement, judges should base on the content of loyalty relationship agreement, and article 143 of the general principles of civil law.