Research On The Legal Application Of Fraudulent Raising Case

In the judicial practice, more and more fraudulent raising cases appear, however, due to the current legal system of our country have not the relevant provisions of fraudulent raising, it bring many difficulties to the trial.In this paper, the author selects some typical cases of fraudulent raising in recent years,sum up the most common disputes in this kind of cases and analyze the problem,clear the legal attribute of the fraudulent raising,discussed the infringement right by fraudulent raising,to find the most reasonable legal norm and principle to solve these disputes.In the imperfect rule of law,it is hoped that the research of this paper will be useful for the treatment of this kind of cases.This paper is divided into five parts except the introduction:The introduction clarified the background of this topic, the research summary, the research purpose and the significance of the research.The first part is the identification of legal attributes of the fraudulent raising.This part introduces four kinds of theories about the legal nature of fraudulent raising brought by the scholars,that is,Invalid behavior theory,Unjust enrichment theory,No management behavior theory, Tort theory,and through in-depth study and analysis of the four kinds of theories, the author thinks that the tort theory is the most appropriate theory to rejected the legal attributes of fraudulent raisingThe second part is the civil rights of the fraudulent raising.This part is mainly from the theory,to seek the foundation right of the fraudulent raising case. Analysis the rights to be infringed by the fraudulent raising including property rights, parental rights, spouse rights, reproductive rights, the right to know and the right of reputation.The third part is the main issues of the application of the law in the case of fraudulent raising. In this part,through summary and analysis of several typical cases,sum up the exiting disputes problems in the process of law application to fraudulent raising cases, such as problems how to determine the cause of action, whether the compensation fee before the divorce is returned, whether the request for compensation for mental damage should be supported,how to determine the main body of compensation.The fourth part is the advice to solve the problems of the disputes problems in the process of law application to fraudulent raising cases.In this part,based on the analysis of the previous part of the author,to find the most reasonable legal norms and principle to solve these disputes.The fifth part is the conclusion.This part is mainly to clarify that fraudulent raising case not only related to the problem of damage compensation,but also related to the important problem of identity change,therefore, the author calls for improvement of the relevant legislation to fraudulent raising early.