On Civil Liability Of Marital Torts In China

Infringement actions exist in various fields of social life. This paper is focused on the civil liability of marital tort, including special characteristics of the marital tort, different composition elements, commitment and the way of tort claims from those ordinary civil liabilities. The particular methodology of the regulate marital tort in legislation and the regulations more reasonability and in line with the requirements of the rule the law society in China is also discussed.Based on numerous research works, in this paper, it is discussed that the special region of the responsibility which exist in marital tort, mainly focused on the marital tort, civil liability of marital tort, foreign legislative experience, as well as the necessity and the possibility of legislation and other concepts. The lucubrate discussion is carried out in the following four chapters.In the first chapter, a brief overview is exhibited on related issues of the marital tort and civil liability of marital tort. The civil liability of marital tort is premised on some basic points, including the concept of marital tort, characteristics and composition, the general compositions of marital tort analysis based on the compositions of elements of ordinary infringement actions. The special nature of marital tort is analyzed in this chapter. Marital tort which happens between husband and wife, with strong individual and private relationships, needs a detailed research on the specific infringement type and granting the premise.Clearly defining the marital tort actions, the concept of the civil liability of marital tort is explained, as well as a variety of different types of violations. The civil liabilities of marital tort which is caused by marriage infringement actions are different from the damages claims in divorce action in divorce proceedings, resulting in differences on the application of the time, the application object, the scope and the way to assume duty.Various theories of civil liability of marital tort are reviewed in chapter two, summarized into two different kinds of theories: the negative theories and positive ones. It is believed by the negative part that it should not claim the liable, because civil liability of marital tort is contrary to the traditional ethics, not conducive to family stability and restricted by the marital property. Nevertheless, because marriage should be legally liable for infringement which has nothing to do with marital relationship, the positive theories persist in that the actor should be legally liable for the infringement.The defining of property improves the relative economic status and independence between husband and wife, so that it is possible to define the civil liability of marital tort. Through further studding the advanced legislative experiences, there are quite many specific institutions of civil liability of marital tort in Western countries, Hong Kong and Taiwan. On the contrary, in our country, There are some provisions of civil liability for infringement in our country, but these provisions are too general, decentralization, and rarely in the administration of justice being applied in practice, look at the provisions of the law, Tort about marital relevant provisions of the law does not, Laws about marriage in our country even though the existing provisions of the divorce damages the system, but to make up for the victims of this system there is a lack of damage.The third chapter focuses on the necessity and feasibility of the marital tort legislation. There are significant deficiencies in the field of marital tort legislation, contrary to the requirements of building the rule of legal society.With the development the society, it needs to have a fair legal protection in every fields, the necessary of legislate marital infringement civil liability is mainly composed of the following fields: implementing the equality between men and women which is required by the constitution and law, filling the legal gap, maintaining the legal unification, protecting the legitimate rights and interests of the harmed side of the spouse, maintaining the stability of families, building a harmonious society.It is particularly urgent to make the legislation of civil liability of marital tort, however the actual conditions, the timing and the ripe conditions are not neglectable. The angle of legal basis, economic base, basic idea and the practical requirements were all researched in this paper.The legislation of the marital tort civil liability is envisaged in chapter four.First of all, it is necessary to coordinate the civil liability of marital tort and the compensation duty of divorce damages. It is recommends in this article that they should be provided separately when competition and compensation happen, and the parties are free to choose any of them in the future. Second, the system design of the legislation. (1) system rights of the spouse to provide a prerequisite of fairly burden the civil liability of marital tort, (2) a certificate system of very property of the spouses in order to define the civil liability of marital tort, (3) to solve the tort liability of marital commitment, Li claims certificate system to not address the very property, (4) a registration system to clear personal property of the spouse in the common property, (5) temporary separation system, as complement of cohabitation system to alleviate the contradictions of husband and wife.