Study On The Civil Liability Of Fraudulent Maintenance

In recent years,the number of fraudulent rearing cases in the field of marriage and family is increasing.The fraudulent disputes is not only harmful to minors and fraudulent parties,but also destroy the stable order of marriage and family.Fraudulent rearing means that the fraudulent partiesintentionally conceals the truth and fabricate facts during the period of marriage or non marital relationship,or there is a gross negligence,which causes the fraudulent party to take fictitions child as his own child wrongly,and take up the duty of raising.In April 2,1992,China's Supreme People's Court issued "A letter in reply to relevant whether he can recourse the fostering expense or not to the woman after divorce when the existence of marital relationship man deceived raising non biological child"([1991]30),hereinafter referred to as the "reply"),It is a preliminary provisions for fraudulent custody cases.But the provision is limited,which only made provision for the return of the rearing fee after divorce,but lack the regulations about the return of expenses for maintenance during the marital relationship and cohabitation period;the support of the mental damage compensation and the bear of liability for tort,the judge can only be based on the"reply" to solve the problem and cause some obstacles to protect the rights of fraudulent parties.Therefore,it is necessary to study the fraudulent rearing disputes in China.In view of this,starting from the basis of the responsibility of fraudulent rearing tort,discussing the basic theory of fraudulent support tort,definition the legal attributes of fraudulent support,putting forward four theories which is exist,affirming the fraudulent rearing behavior is a compound tort which on the basis of the analysis and evaluation of each theory,invaded the property rights and personality interests of the fraudsters,carring out specific analysis to the constitutive requirements of the tort liability for fraudulent rearing.Secondly,by consulting the tort liability of fraudulent rearing data of different countries or regions,compare the relevant regulations about Germany;Japan and Taiwan which is the countries and regions of the continental law system and relevant regulations about the United States and the United Kingdom which is the Anglo American legal system,reach the view that protecting the interests of minors is a basic value in foreign country when the judge deal the fraudulent maintenance cases.Thirdly,by analyzing the legislation after the founding of new China,conclude the functions and characteristics,and points out that our country should learn from foreign experience and combine with the basic situation of China,so as to establish the legislative value of the tort liability of fraudulent custody with Chinese characteristics.Finally,discussing the subject of claim and compensation of the fraudulent raising,clear the main claim is fraudulent parties,the subject of fraudulent rearing is not limited to the parent of the dependant,combined with the specific case and theory,determining the way of indemnity for fraudulent maintenance,defining the range of indemnity for fraudulent maintenance as compensation for property and mental damage,and draw the calculation method of tort damages for fraudulent rearing.