Study On Spouse's Tort During Marriage

The phenomenon of infringement of marriage in couples has always existed objectively since ancient times.It's just that the previous society adhered to the idea that “the law does not enter the house” and “domestic shame should not be made public”,which leads to the phenomenon of husband and wife infringement has not received the attention of society and law.However,with the development of "equality between men and women" and the rule of law,people's awareness of rights has begun to wake up.When there is infringement between husband and wife,especially when the wife is harmed by her husband,more and more people no longer choose to suffocate.Instead,they choose to protect their legitimate rights and interests through legal channels and relieve their own damage.In the judicial practice,the infringement lawsuit of one spouse with the other party as the defendant has gradually increased.However,the existing legislation in China does not stipulate the corresponding system of infringement liability of the couple in marriage,which cannot satisfy the public's demands.Therefore,it is necessary to conduct research and discussion on issues related to marital tort liability,in order to help the legislative and judicial practice.This article is divided into the following five sections for discussion,the text has a total of 31,312 words:The first part is the question.By analyzing the relevant cases,it is found that the court not have an unified view when they treat the problem between the husband and wife,which is whether they can apply the general tort liability and how to apply the difference.It is because China lacks the system of infringement liability of couples in marriage,which leads to the discussion of this article.The second part is the necessary to study the infringement liability in marriage in China,from maintaining the unity of law,safeguarding the lawful rights and interests of the parties to a marriage,raising the awareness of rights and preventing the occurrence of infringements in marriage.Analysis and discussion on various aspects,found that the studying of the marital tort liability system is very important for the above three aspects.The third part is the basic theory of the infringement liability of the couple in marriage.This part focuses on solving the conceptual problem.Firstly,according to the concept of general tort liability and the special identity relationship of husband and wife,the concept oftort liability in marriage is defined.Secondly,by comparing with the general tort liability,the similarities between the two and the particularity of infringement in marriage are obtained.Finally,the author analyzes the constituent elements of the tort liability in marriage,and considers that it is different from the general tort liability in subjective faults,including only intentional and gross negligence.The general or minor negligence law should not be involved in adjustment to maintain the harmony and stability of the marriage and family.The fourth part is a comparative study of the infringement liability system of couples at home and abroad.Through the historical analysis of the infringement liability system of the Anglo-American legal system and the civil law system,it is found that their attitude towards the existence of tort liability between husband and wife has undergone a huge change.However,in the end,the position of infringement of couples by tort law was established.The development of the two major legal systems shows that recognizing the tort liability between husband and wife is the inevitable result of social development.Finally,combined with the status quo of foreign legislation,it is expected to play a reference and reference for the construction of China's marital tort liability system.The fifth part is the Obstacles and Perfection of Realizing the Infringement Liability of Couples in China.The first is to analyze the obstacles in the realizing of the infringement liability system in marriage,and the second is to propose how to perfecting the infringement system in China.The first clearly stipulates the specific rights and obligations between husband and wife and incorporates them into the scope of the infringement object of the husband and wife.The second is to clarify the responsibility for the infringement between husband and wife.The third is to improve the husband and wife property system and to be responsible for the infringement of marriage.The implementation of the system provides the basis for the system,and the fourth is to amend Article 46 of the Marriage Law of China,and to break the legislative obstacles in order to establish the responsibility of infringement of marriage.