Research On The Determination Of Liability For Fraudulent Maintenance Torts

The legal nature of fraudulent maintenance,there are five theories in academia: management without cause,unjust enrichment,breach of contract,tortious acts,and ineffectiveness of acts.Fraudulent maintenance is more reasonable to be found to be an infringement because although the other four doctrines are compatible,there are many deficiencies in their application,which can neither provide complete relief to the deceived person’s property nor apply moral damages to protect the rights and interests of the defrauded person.The application of tortious acts means that the deceived person can not only claim the return of property to compensate for losses with tort liability,but also apply the remedy of moral damage to personal rights and interests.At present,the problems existing in the determination of fraudulent maintenance tort liability in China’s judicial practice are mainly manifested in three aspects: First,the civil rights and interests infringed by fraudulent maintenance infringement are not clear;Second,the subject of fraudulent maintenance tort liability is not clear;Third,there is no clear standard of compensation for maintenance and consolation payment for mental damage in the fraudulent maintenance tort liability.Referring to the relevant legislation outside the territory,after summarizing the experience,it is believed that in the determination of fraudulent maintenance tort liability,the specific civil rights and interests infringed by the fraudulent maintenance infringement should first be clarified,including the property rights and general personality rights and interests of the defrauded party,and based on this,the defrauded party has the right to request the fraudulent party to return the maintenance and compensate for the consolation of moral damage;Second,the main responsibility of the dependent biological mother in the fraudulent maintenance tort liability,as well as the main responsibility of the biological father in special circumstances,should be clarified;Finally,reference standards for compensation for maintenance and consolation for mental damage were proposed.