0n Regulation Of Civil Law On Extramarital Affairs

Extramarital affairs as a social problem was clearly regulated in both Chinese and foreign ancient law. Because of the limitations of social history and the inequality between men and women, the main regulation is the adultery of women, such as Yulia adultery law adopted by the Emperor Augustus held that a wife's adultery was immoral, classified at the public prosecution, and sentenced to exile by the court while a husband's adultery was sanctioned very lightly, just losing the right to sue his wife's adultery, and to return expectation interests of dowry which the wife could order him to immediately return. In China, Dadailiji·Benming in Han Dynasty stipulated that a wife'adultery, as one of seven types of grounds for a husband to cast off his wife and send her back to her parents in feudal laws, was serious adultery, but a husband's adultery was ordinary adultery, for concubinage was taken for granted.Sex liberation thoughts, which started in the Renaissance period in Europe, once cost a lot in European and American countries. After 1960s-1970s, the western countries had gone through the setbacks of sex liberation, and then put forwards the slogan of"returning home", and put it into European Charter of Human Rights. With the economic development, the broadening social communication, the renewing value sense and the uncontrolled social regulation in China, extramarital affairs becomes more and more in society.Extramarital affairs not only hurt the couple physically and mentally, and destroy the stability and happiness of the family, but also bring about many serious social problems such as official corruption and malignant criminal cases. Therewith, Marriage Law in China regulates in Article 4 that"Husband and wife should be loyal and respectful for each other"and proposes in Article 46 that"One of the couple should sue and claim for compensation if the other commits the two kinds of extramarital behavior, that is, bigamy and married person's cohabitation with other one."Obviously, extramarital affairs are more than these two cases, In addition to the main fault of the spouse abuse should also include a "third party" damages only in the negative in a timely manner to achieve a divorce to stop infringement, invasion victim spouse the right to initiate proceedings in which the laws were broken, the current legislation in our country the main problems, In this paper, learn from foreign law based on the proposed law should be clear that the spouse the right to particular Spouse claim of violation of the spouse the right to a "third party" to legal punishment, perfect husband and wife within the tort liability and other public law system of extra-marital affairs of the legislative proposals, in order to achieve spouses are the effective protection of legitimate rights and interests, reflecting the law of justice.The thesis consists of three parts: the introduction, the body and the conclusion, and the body includes five chapters as follow:Chapter One is the general situation of extramarital affairs, with its status quo causes and harmfulness. Extramarital affairs refers to married couples take place with the third person the emotional or physical or both behaviors causing an impact on a stable marriage and family relation, and the physical damage to another party of the couple during the existence of marriage. Data indicates that the phenomenon of extramarital affairs in our country has shown a tendency to spread, the causes are both the objective and the subjective, and it is not only harmful to the health of the spouse, and the peace and happiness of the child and the elderly, but also the main incentive of vicious criminal cases such as killings in revenge and love.Chapter Two as the one the essay focused on is the necessity of the regulation of civil law mainly related to choices of values such as law benefits, rights, and freedom. Law benefit is the legally protected interests everyone is entitled to enjoy but not everyone can enjoy, therefore, if the injured spouse wants to get stronger legal protection the interests based on the identity of spouse must rise to the rights, that is, the formation of the right of spouse. Freedom is the freedom within the law, not anyone's arbitrary freedom, otherwise, it would result in violation of the freedom of others, disruption of normal social order. Handling well the relationship between the three is critical for legal regulation for extramarital affairs. This part also discusses the check and supervision of the values such as justice, fairness, and freedom in the regulation about extramarital affairs from the perspective of philosophy of law and civil law. Chapter Three discusses the status quo and the main problems of our legal regulation about extramarital affairs. Article 4, Article 32 and Article 46 in the Marriage Law of our country, make the relevant provisions, and the Supreme Court also make the relevant explanation. In the Marriage Law, although spouse's fidelity to each other is stipulated at the first time and obtains a great breakthrough, there are many problems such as the unclear provisions on causes-appeal of the injured party, the lack of provisions for litigation of tort in marriage, imperfect stipulations on the subject of compensation liability for the injured spouse, the narrow provisions of ways of responsibility and commitment of tort side, which are neither conducive to maximize the protection for the legal interests of the injured party nor to curb the spread of the phenomenon of extramarital affairs.Chapter Four mainly makes a discussion on the regulation on extramarital affairs in foreign laws and gets the beneficial inspirations from their attitudes towards this phenomenon in western countries. No matter in European countries, America or French countries, they give the clear and definite legal regulation on extramarital affairs, and they also charge"the third party"to bear the legal responsibilities. Returning home and supporting family are the lessons they have learned from the setbacks of sex liberation and free divorce. All in all, we should take warnings from the experiences of western countries and take measures to restrain this phenomenon in order to sustain the stability of both family and society from the perspective of law.Chapter Five is another main part of this article, mainly putting forward the legislative proposals for the future regulation of civil law about extramarital affairs of our country. In this part, the paper firstly gives the research findings on this subject, that is, regulation about extramarital affairs requires the intervention of legal norms combined with the power of morality and public opinion. Considering current inadequacy of Marriage Law of our country, on the basis of the reasonable points of foreign science of law, the author comes up with the legal design for the regulation about extramarital affairs, that is, the law should clearly stipulate the right of spouse, especially the right of claim for fidelity to spouse, charge the"third party"ignoring monogamy to bear legal punishment, perfect responsibility of tort within marriage, and other contents conducive to regulate extramarital affairs, such as adding the act of adultery as one of the behavior infringing right of spouse, viewing it as legal grounds for divorce, and at the same time prescribing clearly tort litigation within marriage in order to reflect the support of public power for stable marriage and its protection for the interests of the weak.