婚姻无效善意方民事救济研究

发布时间：2018-04-25 02:39

本文选题：婚姻无效 + 善意　；参考：《海南大学》2016年硕士论文

【摘要】：我国婚姻法规定了无效婚姻和可撤销婚姻制度,这两种制度都致当事人的婚姻归于无效,不产生夫妻身份效力。因此,在解除双方的同居关系时,就不能依合法婚姻的离婚救济措施来救济善意一方。这就导致婚姻被宣告无效后,身份权利及派生利益蒙受损害之善意方不能得到足够的法律救济。法律对婚姻无效当事人予以救济或追究责任之重要前提为当事人之“善意”与“恶意”之分,只有在符合“善意”的条件下对其进行民事救济才具有正当性。但由于我国婚姻法中对“善意”与“恶意”均未作明确规定,故仅能参照民法中“善意”与“恶意”之涵义,结合早婚、重婚、疾病婚与胁迫婚中须以区分善恶来认定民事责任或予以救济之具体情形,厘清各利种情形中之“善意”与“恶意”。婚姻无效之民事救济应适用何种法律原理,是该民事救济制度之设立基础。总结分析国内外关于婚姻无效善意方民事救济之不同原理,发现导致婚姻无效之违法行为所侵犯之权益基础的特殊性,不能适用一般民事侵权或违约责任规则,故须在婚姻法中设立专项婚姻无效之侵权责任制度。而依我国立法价值取向以及现有立法基础,不宜以承认善意方之婚姻效力或适用离婚效果之规定来进行救济,在符合特定条件时赋予婚姻无效善意方一定经济权利较为适宜。损害赔偿作为我国侵权责任中主要的财产责任方式,其价值理念除了救济损害,亦包含制裁违法者,且对善意方进行损害赔偿,不会造成违法婚姻和合法婚姻之混淆,既符合婚姻无效善意方民事救济之价值理念,又符合我国当前之立法价值取向。此外,实践中常出现损害事实认定难的问题,现有法律中不以损害事实为成立条件的救济措施有经济补偿与经济帮助,考虑到经济补偿之立法理念相较于经济帮助,更贴近于婚姻无效善意方民事救济之价值理念,故以婚姻无效经济补偿作为善意方之补充救济方法。婚姻无效损害赔偿与经济补偿皆须满足一定成立条件,如当事人具有善恶之分、婚姻被宣告无效等,?婚姻无效经济补偿仅适用于损害事实难以认定或证明,但又不能完全排除善意方有损害之情形。
[Abstract]:The marriage law of our country stipulates the system of invalid marriage and revocable marriage, both of which cause the marriage of the party concerned to be null and void, and do not produce the validity of marital status. Therefore, in the dissolution of the cohabitation relationship, it is not possible to remedy the bona fide party according to the divorce relief measures of the legal marriage. As a result, the bona fide parties whose identity rights and derivative interests have been damaged cannot receive adequate legal remedies after the marriage is annulled. The important premise of the law to remedy the invalid party of marriage or to investigate the liability is the distinction between "good will" and "malice" of the party concerned. Only if the civil remedy is carried out in accordance with the condition of "good faith" can it be justified. However, since there are no clear provisions on "goodwill" and "malice" in our marriage law, we can only refer to the meaning of "good faith" and "malice" in civil law and combine the meaning of early marriage and bigamy. In the marriage of disease and coercion, it is necessary to distinguish between good and evil to identify civil liability or to give relief, and to clarify the "goodwill" and "malice" in various situations. What kind of legal principle should be applied to civil relief of invalid marriage is the foundation of the civil relief system. This paper summarizes and analyzes the different principles of civil relief for the nullity of marriage in good faith at home and abroad, and finds that the particularity of the basis of the rights and interests infringed by the illegal act leading to the nullity of marriage cannot be applied to the general rules of civil tort or breach of contract liability. Therefore, it is necessary to establish the tort liability system of invalid marriage in marriage law. According to the value orientation of our legislation and the existing legislative basis, it is not appropriate to grant certain economic rights to the bona fide party to the invalid marriage when it meets the specific conditions, and it is not appropriate to grant relief by acknowledging the validity of the marriage of good faith Fang Zhi or applying the provisions of the effect of divorce. As the main way of property liability in tort liability in our country, the value concept of damage compensation includes not only the relief of damages, but also the punishment of violators, and compensation for damage to bona fide parties, which will not cause confusion between illegal marriage and legal marriage. It not only accords with the value idea of civil relief of invalid marriage, but also accords with the current legislative value orientation of our country. In addition, in practice, it is often difficult to identify the damage facts. In the existing law, there are economic compensation and economic help in the relief measures which do not regard the damage facts as the condition of establishment, considering that the legislative concept of economic compensation is compared with economic help. It is closer to the value concept of civil relief for the nullity of marriage, so the economic compensation for nullity of marriage is taken as the supplementary relief method of good faith Fang Zhi. The nullity of marriage damages and financial compensation must meet certain conditions, such as the parties have good and evil, the marriage was annulled and so on. The financial compensation for nullity of marriage is only applicable to the fact that the damage is difficult to identify or prove, but it can not completely exclude the situation of damage in good faith.
【学位授予单位】：海南大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D923.9

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