On Constructing The System Of Marital-tort-Liability

Under the effect of the doctrine of integrated conjugal personality and the conception of traditional culture in china, together with the performing legal communal estate system in our country, we haven't established the system of marital tort liability so far. The marital tort had been dissevered and abandoned from the whole system of tort liability, either because of its specialty in the relationship of tort subjects, its being considered as no sense to exist, or because of the existing divorce damage compensation system can already satisfy victims. Most of the scholars regards, although the infringement between conjuges is harm to society, although the victims have the right to acquire the legal remedy, the infringement itself has a character of specialty and concealment, the application of common remedy will go against the reasonability of life, and undertaking marital tort civil liability will be nothing else than"taking one's money from the left pocket to the right".The thesis regards marital tort a tort, being illegal, should be punished by Torts; meanwhile, marital tort has the particularity in time and the subjects-relationship, and it should be regulated by Marriage Law.The whole thesis is almost 30 thousands words, and has been divided into four parts, with an standpoint of protecting the marital legitimate interest of conjuges, discussing about establishing system of marital tort liability.Part I is a summary of marital tort liability. Marital tort is conjuges who has legitimate relationship, violating the regulation of legal rights and obligations in the way of act and forbearance, and carrying out the behavior of infringing the conjugal rights on physics and property, resulting damage to the other party. The marital tort is different from the common tort liability and the liability of divorcing damages. Although the existing legislation hasn't denied the system of marital tort liability, there is no expressly provisions regulated it, therefore the judicial department is lacking of unanimous attitude on whether to ascertain the liability, causing disunity in judicial practice.Part II is the theory debate about whether to establish marital tort liability. Our academic community has two opposite attitude towards establishing marital tort liability. My thesis is on the pro-party, because conjures has independent personalities and can't be exempted from conjugal relations; with regard to infringement of bodies and property behavior, the saying of"law shouldn't go home"is not applicable; the type of partnership of conjugal relation is not under regulation; the common property system of after-marriage cannot be the obstacle.Part III is the necessity and feasibility about establishing our system of marital tort liability. The necessity manifested in not only meeting the requirements of maintaining the unity of judicial system and filling up the legislative blankness, but also promoting legal consciousness of people and maintaining the stability of families. The feasibility manifested in our country has already embodied better foundation either from mental angle or from legislation angle to establish marital-tort system.Part IV is the concrete suggestions about establishing system of marital tort liability. First, the author considers how to choose the model of legislation, and regards adopting the legislative model of"combination of the general torts and Law of domestic relation, with priority of adopting the special provision in Law of domestic relation". Secondly, the author designs the concrete system of marital tort liability, including the doctrine of liability fixation about marital tort liability, the contributing element of liability and the form of liability, etc.