The Third Person’s Civil Liability For Interfering In Legitimate Marital Relationship

There has been a heated discussion among quite a few scholars over thephenomenon of “Extramarital Affairs” and “Keeping A Mistress” in the process ofmodifying the1980Marriage Law, and both the people proposing these issues beregulated by law and those insisting be tuned by virtue of morality occupy atremendous number from which the complexity of such issues is reflected. The newlymodified Marriage Law in2001, instead of adopting the concept of “spousal right”,just incorporated an advocacy clause of “the husband and wife shall be loyal to eachother” into its general provisions, which, as a result makes the academics still holddifferent opinions on this issue and creates in practice un-unified judgments bydifferent local courts on one same claim of moral damage initiated against the thirdperson’s interference in legitimate marital relationship. In relation to this issue inpractice, this article seeks to demonstrate by multi-disciplinary and comparativemethodology the issues such as whether and under what circumstances the thirdperson’s interference in legitimate marital relationship constitutes a tort and how toassume the liability of tort on the basis of relevant theoretical researches concerninghuman sexual psychology, sociology and jurisprudence, in the hope of seeking anappropriate and unified way to solve this issue in practice.This article will discuss relevant issues in five chapters in addition to theintroduction and conclusion.Chapter I mainly deals with the sorting and analysis of the civil cases of the third person’s interference in legitimate marital relationship in judicial practice. The authorhas searched with several interrelated keywords such as “extramarital love”,“extramarital affairs”,“third person” and “interference in legitimate maritalrelationship” for16representative civil cases and divided them into five categories:“the innocent party v. the defaulting party”,“the innocent party v. the third party”,“the innocent party v. the defaulting party and third party”,“the defaulting party v. thethird party” and “the third party v. the innocent party”.Chapter Ⅱ involves in some basic researches on disputes of the third person’sinterference in legitimate marital relationship. Among these researches, the authorexplores in the basic research of human sexual psychology the tendency of humanbeings to be tied in bonds of matrimony that is aroused as a result of such naturalneeds of material production and child upbringing, concluding that they still havepolygamous instinct and impulse of pursuing new in essence; reviews in sociologicalresearch the gradual evolution of human family mode and new change in modernmarriage function, pointing out the sexual morality order is shifting from “chastitycentered” towards “child centered”, and explores in legal theory research therelationship and varied functions between law and morality, clarifying the uniquenessof marriage&family law.Chapter Ⅲ concerns some comparative law exploration into disputes of thethird person’s interference in legitimate marital relationship, with particular focus onthe evolving process of practical disposition against adulteries in Germany, France,Japan, Italy, Taiwan (China), England and America and relevant theoretical argument,as well as the underlying causes of this evolution.Chapter Ⅳ focus on sorting the current methods in theory or practice of dealingwith the disputes of third person’s interference in legitimate marital relationship atmainland China. It introduces some legal provisions related to these issues andinsights in practice, specifically discusses the declining trend of loyalty duty, sorts andanalyzes the arguments on “legalization of spousal right”.Chapter Ⅴ proposes the basic concept of how to deal with the third person’sinterference in legitimate marital relationship on the basis of these above researches. Generally, it is not recognized that adultery constitutes a tort unless the infringer hasthe subjective intention of infringing upon the personality rights and interests of otherparty which satisfies with the elements of going against good morals. The tort liabilityis borne mainly in the form of mental damage, but along with other complements suchas the cessation of infringement, apology and elimination of effects.