Divorce damages and damages of tort of husband and wife and other (one)
One, divorce damages and damages of tort of husband and wife
The divorce on our country marriage law is damaged scoop up countervail, it is to because legal is serious,point to one party of husband and wife fault behavior brings about a divorce, without fault Fang Youquan requests damages. Damages of the tort between husband and wife, be during pointing to one party of husband and wife to put add in marital relation, produce the right because of the person of the other side of fault enroach on, money and because of assumed damages responsibility. The itself of some of legal particulars of a matter of the divorce damages that sets as a result of our country marriage law makes tort conduct namely, if carry out domestic force, mistreat, abandon family member, divorce damages and damages of accredit of husband and wife exist on legal standard coincide, be in applicable on not hare happening doubtful point, use domestic force according to the facts, the victim does not sue a divorce, can you deny damages of direct request tort? Accordingly, the concern that how understands both becomes law namely applicable medium serious problem.
1, the distinction of divorce damages and damages of tort of husband and wife. Above all, both form important document to differ. Damages of the tort between husband and wife, it is right of a person because of the other side of fault enroach on, property character actually, consequently it must accord with tort behavior make important document. And divorce damages, the reason that because cause a divorce,is not makes tort conduct, and one of reasons that divorce itself is damages happening namely, this kind of damages ought to have marriage law plan 46 [the 46th has one of following state, those who bring about a divorce, without fault Fang Youquan requests damages: (one) bigamous; (2) the person that have a mate and other live together; (3) executive family is violent; (4) mistreat, of abandon family member. ] of the regulation make important document. Next, law is applicable and different. The damages that happens because of accredit of husband and wife requests authority, it is a request according to the regulation of tort behavior, be on the regulation on property law; And because divorce,the damages request that damage and happens counterpoises, although did not satisfy the important condition of tort behavior, also get request compensation, belong to marriage law to go up therefore special provision.
2. Divorce damages and damages of tort of husband and wife are not mutual repulsion. During marital relation puts add, party does not sue a divorce and alone basis marriage law sets the 46th times mention damages requests, people court does not grant to accept. Because divorce itself is one of accounts that divorce damages produces namely,this is, although provide this provides main content and do not sue a divorce, accord with a divorce not completely to compensate for those who request authority to make important document, base of its request power is consequently undeserved, forensic behoove does not grant to support. But, if party nots comply,occupy marriage law the 46th, however general rule of basis civil code the 106th [breach of contract of the 106th citizen, legal person or nonperformance is other and compulsory, ought to assume civil responsibility. Citizen, legal person because of country of fault enroach on, collective belongings, of belongings of enroach on other, person, ought to assume civil responsibility. Without fault, but legal provision ought to assume civil responsibility, ought to assume civil responsibility. ] mention damages requests, people court should grant to accept. Because husband and wife has independent moral quality each, for individual right subject, right of a person because of the other side of fault enroach on, property, ought to assume civil responsibility. Our country civil legislation is not denied tort damages liability establishs between husband and wife.
2, the condition of divorce damages
According to marriage law the 46th sets, divorce damages requests to counterpoise hold water have relatively strict requirement. These conditions are:
1, one party must have legal serious mistake behavior, this is the necessary premise that forms divorce damages. Serious mistake behavior be confined to is the following 4:
(1) is bigamous, the person that have a mate namely marries with other again; (The person that 2) has a mate and other live together, the opposite sex outside the person that have a mate namely and marriage, not with spouse name, continuously, live steadily jointly; (3) carries out domestic force, point to behavior person in order to beat up, bind, cruelly kill, limit person freedom forcibly other perhaps measure, the respect such as the body that gives its domestic member, spirit causes the behaviour that harms consequence certainly, (4) is mistreated, abandon family member, namely durative, regular the ground carries out domestic force to domestic member, form mistreat.
This is restricted list a provision, cannot do broaden the scope to explain to legal fault behavior. demarcate behavior of these 4 fault. Because they are marriage law,be the 3rd [the 3rd prohibits monopolizing, mercenary marriage and the behavior with other interference free marriage. Prohibit borrowing marriage to ask for property. Prohibit bigamous. The person that prohibit having a mate and other live together. Prohibit the family is violent. Prohibit between domestic member mistreat and abandon. ] clear illicit behavior, attribute serious fault action. Besides, if other mistake behavior is adulterine, walk the street, go whoring, gamble, drug taking, cannot make the legal argument that offers divorce damages. Without fault behavior, cannot put forward damages Qing Dynasty to beg.
2, other one party does not have fault, this is the another necessary premise that divorce damages forms. Alleged " without fault " , not be to show other one party does not have any fault, refer in particular to the bigamy that other one party sets the 46th times without executive marriage law, person that have a mate and other to live together however, executive family force, mistreat, the fault behavior such as abandon family member. If both sides has had germanium, be like respective as bigamous as other, or live together with other, or abandon, mistreat domestic member, criterion any one party cannot have fault with the other side for and put forward damages.
3, because serious mistake behavior was brought about,must divorce. During marital relation puts add, party does not sue a divorce and mention according to this regulation alone damages requests, people court does not grant to accept. People court adjudicates the case that forbids a divorce. The divorce damages that puts forward to party requests, do not grant to support.
4, because serious mistake behavior gives,just must cause without fault damage. This kind is damaged, include the harm of materially already, include the harm on spirit again.
3, the main body that divorce damages asks to counterpoise
Authority of divorce damages request shows marriage law to gift the right that when just divorcing without fault, enjoys, its right subject and compulsory main body all are legal place specific, specific for, should note the following problem:
1, must by put forward damages to request without fault one party. Just did not put forward a request without fault, people court cannot work actively when handling divorce case get, processing. Mention of divorce damages the conjugal one party that having fault just is relation of marriage of as square as fault existence. Someone else, be like children, invalid marriage, by cancel marriage medium " spouse " because behavior of one party fault is damaged,wait, cannot applicable divorce damages, have no right to mention thereby divorce damages, can handle according to the regulation of general tort damages only.
2, must to fault just mentions. Assume the principal part of the damages liability that marriage law sets the 46th times, to the spouse of debit has not been had in divorce litigant. Have only namely with the spouse that has not had debit to form effective marriage to concern just be compensatory obligation main body, someone else, be like as bigamous as the person that have a mate, cohabitational the 3rd person, do not attribute the compulsory principal part of divorce damages.
3, authority of divorce damages request is the special right that does not have fault one party, the exercise of the right, can decide by him obligee only, do not get before pendency is decided concessive or successive. But this right once exercise, be the same as as good as of common creditor's rights, have move sex, it is to be able to turn concessive and successive.
4, the suitable scope of divorce caustic rich compensation
Our country marriage law did not make clear the suitable scope that sets divorce damages the 46th times, in divorce suit party has authority to put forward divorce damages to should not have doubtful point, have as to the circumstance of the divorce that register what request without divorce damages is applicable, criterion not at making clear.
Top people court makes clear a regulation in judicatory explanation: "Party registers mechanism to deal with a divorce to register formalities hind in marriage, with marriage law damages puts forward to request to people court for the 46th regulation, people court ought to be accepted. But party expresses already clearly when the agreement divorces to abandon this request, perhaps put forward after conduction divorce registers formalities one year, do not grant to support. Do not grant to support..
