介入婚姻关系“第三者”侵权责任研究

发布时间：2018-05-11 08:02

  本文选题：婚姻 + 第三者　； 参考：《河北大学》2015年硕士论文

【摘要】：夫妻相互忠实是婚姻关系中的基本义务,也是婚姻法中的基本精神。近年来“第三者”插足他人婚姻的现象呈现蔓延趋势,不仅影响了婚姻家庭的稳定和后代子女的健康成长,也严重影响了社会风气,损害公序良俗原则,并有部分演变成严重的恶性刑事案件,严重影响着社会的安宁与稳定。“第三者”基于主观过错介入他人合法婚姻,侵犯他人婚姻家庭关系,给受害人造成身心损害,就法律调整角度而言,第三者介入婚姻关系后之所以需要承担侵权责任,与法律和道德的关系、法律本身的作用以及第三者侵害婚姻关系本身的权利义务特点密切相关。这些都构成了承担侵权责任的理论依据;就法律原则而言,介入婚姻关系“第三者”的行为违反了我国婚姻法规定的夫妻互相忠实、互相扶助的原则,违背了我国公序良俗、他人合法权益不得侵害的民事制度;从法律理论来看,介入婚姻关系“第三者”侵权行为完全符合一般侵权行为的行为违法性、损害事实、因果关系、主观过错四大构成要件,且在行为的实施过程中,介入婚姻关系“第三者”与婚姻过错方的同一行为又构成对婚姻无过错方的共同侵权,且体现了一定特殊性,即主体特定性、过错的共同性、损害后果统一性和因果关系的唯一性,明显属于共同侵权行为,理应承担共同侵权责任。综观我国现行法律规定,虽规定了夫妻互相忠实义务,但并没有赋予婚姻一方明确的配偶权;虽规定了婚姻无过错方的离婚损害赔偿制度,对婚姻无过错方的其合法权益进行了一定的保护,但这些不仅没有具体权利义务规定,还限定诉请赔偿以离婚为条件,侵权责任的承担请求具有极大的局限性,即忽视了婚姻内部关系的保护,也忽视了婚姻外部关系的调整。面对当前民事法律存在不完善的问题,笔者预通过对其行为的构成进行基础理论论证,以期对我国婚姻家庭健康发展及民事法律的完善提供帮助。
[Abstract]:Mutual loyalty between husband and wife is the basic obligation of marriage and the basic spirit of marriage law. In recent years, the phenomenon of "third party" taking part in the marriage of others has shown a spreading trend, which not only affects the stability of marriage and family and the healthy growth of children, but also seriously affects the social atmosphere and damages the principle of good public order and good customs. Some of them have developed into serious criminal cases, which seriously affect the peace and stability of the society. The third party is involved in the legal marriage of other people on the basis of subjective fault, encroaches upon the marriage and family relationship of other people, and causes physical and mental damage to the victim. From the angle of legal adjustment, the third party should bear the tort liability after intervening in the marriage relationship. It is closely related to the relationship between law and morality, the function of the law itself and the rights and obligations of the third party against the marriage relationship itself. All these constitute the theoretical basis for assuming tort liability; as far as legal principles are concerned, the act of intervening in a "third party" in a marriage relationship violates the principle of mutual loyalty and mutual assistance between husband and wife as stipulated in China's Marriage Law, and violates the public order and good customs of our country. The civil system in which the lawful rights and interests of others cannot be infringed upon; from the point of view of legal theory, the infringing act of intervening in the "third party" of the marriage relationship is completely in line with the four constitutive requirements of the general tort, such as illegality, damage to facts, causality, subjective fault, etc. In the course of the implementation of the act, the same behavior of the third party and the fault party in marriage constitutes the joint infringement of the non-fault party in the marriage, which embodies the particularity of the subject and the commonality of the fault. The unity of damage consequences and the uniqueness of causality obviously belong to joint tort and should bear joint tort liability. Looking at the current laws and regulations of our country, although it stipulates the obligation of mutual loyalty between husband and wife, it does not give one of the parties to the marriage a clear right to spouse; although it stipulates the system of compensation for divorce damages of the party without fault in the marriage, The legitimate rights and interests of the party without fault in marriage are protected to a certain extent, but these not only have no specific rights and obligations, but also limit the claim for compensation under the condition of divorce, so the claim for tort liability has great limitations. Not only ignore the protection of the internal relationship of marriage, but also ignore the adjustment of the external relationship of marriage. In the face of the existing problems of imperfect civil law, the author makes a theoretical demonstration on the constitution of his behavior in order to provide help for the healthy development of marriage and family and the perfection of civil law in our country.
【学位授予单位】：河北大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.9
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本文编号：1873112