Comparative Research On Domestic Torts Between U.S. And China

Domestic torts is an important institution to connect marriage law with tort law. This dissertation focuses on classification and legal regulation of domestic torts, and comparative law research between U.S. and China is characteristic of it. By virtue of comparative, historic, and positive research methods, this dissertation researches system and specific questions about domestic torts in detail, in order to construct the domestic torts legal institution in China.This dissertation includes five parts.Chapter one“Introduction”: this part mainly illustrates the reasons and the significance of researching domestic torts, and analyzes the status quo of domestic torts between U.S. and China by introducing the references and main points. Meanwhile, this part introduces the main research methods and structure of this dissertation, to prepare for the following research.Chapter two“Basic Theory of Domestic Torts”: according to its concept, the central features of domestic torts include particular subjects, particular period, particular rights, severe damages, serious fault, balance of interests. It is to make greater theoretical and practical sense that domestic torts could be divided into domestic torts between couple and third party interference with marriage relationship. The theoretical basis of domestic torts includes four parts: historical condition, subject qualification requirements, rights condition and social condition.Chapter three“Domestic torts in U.S. Law”: it’s generally that domestic torts could be also divided into domestic torts between couple and third party interference with marriage relationship in U.S. law. Domestic torts between couple is recognized by law, after outdated interspousal tort immunity was abolished. Although there are some disputed opinions about tortious misrepresentation of paternity, domestic violence, tortious transmission of sexually transmitted disease are universally accepted and regulated by U.S. law. On the contrary, third party interference with marriage relationship becomes more diverse. With the decline of heart balm actions, third party direct interference with marriage relationship which sets alienation of affections and criminal conversation as core is only recognized by few states, most states refuse to accept it. However, third party indirect interference with marriage relationship is gradually accepted by U.S. law. It is not only independent, but also derivative due to its derivation from personal injury of direct injured party.Chapter four“The status quo and comments about domestic torts legal institution in Chinese Law”: this part illustrates the legislations, justice and theories at first, and finally concludes that there is no domestic torts legal institution in China now. Chinese legislations don’t definitely recognize domestic torts; some judicial interpretations refused to recognize particular types of domestic torts, and courts make adverse decisions toward it; scholars also have positive and negative opinions about it, but the former become the mainstream now. This part analyzes the internal causes of status quo of domestic torts legal institution in Chinese Law then. It concludes that great discrepancies between marriage law and tort law, nonexistence of consortium concept in marriage law, significance of moral rules and no litigation idea in family disputes settlement, are systematic impediment, right factor and cultural puzzle resulting in status quo.Chapter five“Improvements of domestic torts institution in Chinese law”: this part analyzes the feasibility of recognizing domestic torts in China at first. This part considers that domestic torts had better be regulated by marriage law, and domestic torts and divorce damage compensation are not coincident and competitive, so they could be coexistent in marriage law; it’s unsuitable to make domestic torts action and divorce action to be mandatory joinder, and the party would have rights to determine action joinder or separation; domestic torts has more strict requirements, its legal responsibilities include property liabilities and nonproperty liabilities; it’s necessary to improve corresponding institutions, but punitive damages should not be recognized.The“conclusion”of this dissertation: This dissertation thinks domestic torts includes two types: domestic torts between couple and third party interference with marriage relationship. Domestic torts between couple contains personal torts and property torts, which should be both accepted by Chinese legislations and justice; third party direct interference with marriage relationship which contains alienation of affections and criminal conversation, should not be recognized by Chinese law. However, China should recognize third party indirect interference with marriage relationship, and construct reasonable domestic torts institution.