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Determination of the liability for fraudulent support during the marriage

Release Date：2019-02-19 Source：admin

The fraudulent relationship should be recognized as an infringement relationship, and the fraudulent party has the right to require the fraudulent party to return property losses such as maintenance and education expenses, and to claim compensation for mental damage.

[Basic case]

Kitamura (male, Japanese nationality) and Ren Moumou (female) were married in February 2005, and Ren Mou gave birth to a son in January 2006. In 2010, the husband and wife were divorced with their feelings, and the son lived with him and was raised by him. In 2012, Beicun suspected that his son was not his own, and he did “the paternity test” and confirmed that there was no blood relationship. In April 2012, a certain person in Beicun will sue a certain court to the court, requesting the order of Ren Moumou to return the maintenance and education expenses and compensate the mental loss.

[differences]

In the trial process of this case, there are two opinions on whether or not to assume liability for compensation and the scope of compensation:

One opinion holds that: when a husband and wife live together during the life of the husband and wife, the two sides jointly raise the children born to them, and the other people in the village cannot make a maintenance obligation, but because the property of the husband and wife is shared by the marriage, The amount of maintenance expenses for each expenditure cannot be calculated. Therefore, Beicun has no right to claim the maintenance expenses during the period of returning the marriage relationship, and the compensation for mental damage should not be supported.

Another opinion is that Ren Moumou used deceptive means to let Beicun believe that the child is his own child and provide support expenses, infringe on the property rights and personality rights of the unrestricted obligor, and should bear the infringement civil rights. The liability for compensation shall be the return of maintenance and education expenses and compensation for mental damage.

[Analysis]

The author agrees with the second opinion on the differences in this case.

However, before the analysis, first clarify the legal concepts and legal issues involved in the case.

(1) The concept of fraudulent parenting

Nowadays, the social economy is developing at a high speed, people's lifestyles are becoming more and more diversified, and “extramarital affairs”, “one-night stand” and other social unhealthy trends are becoming more and more rampant. A woman with extramarital sex may be pregnant with a third-party child of extramarital sex because of extramarital sex, which results in the woman’s spouse being unrelated to the child born to the wife. However, because women intentionally or unintentionally concealed the facts of unrelated relationships, both spouses still raised the children as their own children for a period of time or raised adults, and later discovered by the man, the two sides had legal disputes. The scholars used this kind of husband’s unwitting behavior to raise the children born to the wife and the third person outside the marriage, called fraudulent support.

Scholars also have different opinions on the concept of fraudulent parenting. However, the author believes that the most authoritative is the discussion of Professor Yang Lixin. He believes that: “fraudulent care refers to the fact that during the marriage period and even after the couple’s divorce, the wife knows that she is in the marriage. Born a child born out of wedlock, the child still uses concealment and other means of fraud, so that the husband believes that the child is a legitimate child, and the husband bears the obligation to support the child.

(2) Legal recognition of fraudulent support

Fraudulent custody disputes are litigation disputes with high frequency in China in recent years. At present, there is no legislation for fraudulent support in China. Only the 1992 Supreme People’s Court issued the issue that the man is deceived and raised by non-natural children during the period of the spousal relationship. After the reunification of the woman’s recourse to the childcare fee (hereinafter referred to as the “Response”), the reply states: “When the marriage relationship continues, one child is married to another child, and the other is deceived and raised. If the maintenance payment after the divorce is returned by the deceiver, it may be returned at the discretion; as to whether the maintenance payment paid by the deceiver should be returned during the relationship between the husband and wife, it is necessary to further study because the problems involved are more complicated. According to this reply, the Supreme Court has clearly defined the return of the maintenance payments paid by the fraudulent party after the divorce (this article does not discuss), but the return of the maintenance payments during the marriage is not clearly defined. Moreover, the legal basis for the fraudster’s return of maintenance is not covered. As more and more scholars begin to pay attention to the research of fraudulent parenting, the controversy has gradually increased, especially the legal recognition of the behavior, there is a dispute between affirmative and affirmative, and in the affirmative theory, the behavior is invalid. There is no unified understanding of the theory of saying that there is no management theory, unjust enrichment, and infringement damages, which makes it difficult for judges to deal with such problems in practice. However, after more than 20 years of controversy discussion, in recent years, scholars have gradually tended to agree to affirm, and agreed to affirm the infringement claims. The most authoritative of them is Professor Yang Lixin. He believes that: “The disputes in fraudulent care seem to be a dispute over the payment of support payments. In fact, it is a compound infringement, which is the interest of the fraudulent party as husband and father. Infringement and return of maintenance payments are only the compensation obligations that the act should bear. The behavior of the fraudulent party is in conformity with the composition of the tort liability. Among them, the infringing behavior includes the father and the mother of the dependent, not only the mother; the mother and the father adopt the means of concealing fraud, so that others can bear the support obligation of the child, and escape from raising. The act of obligation is the illegal act in the constituent elements of the tort; it is because of the concealed fraud of the father and the mother that the fraudulent party raises the child, thereby paying the support, the fraud of the father and the mother and the loss of the fraudulent party. There is an obvious causal relationship; at the same time, the foster mother adopts the means of concealing fraud, which damages the rights of the fraudulent party and is subjectively at fault. Therefore, fraudulent support fully conforms to the illegality, damage consequences, causal relationship and the four elements of the infringer's fault in the infringement required by the tort liability. ”

(3) The scope of compensation by the fraudulent party

There is compensation for violations. In the case of fraudulent support litigation, the fraudulent party infringes the property rights of the fraudulent party, that is, the payment of the childcare fee, education fee, etc., and is required to be returned by the fraudster. This is not disputed in both the theoretical and practical circles, and the reply There are already clear regulations in the book. However, it is controversial that the fraudulent party seeks compensation for mental damage, the basis of the request and the arguments supported by the court. The author believes that the basis for the request of the fraudulent party and the arguments supported by the court are based on the infringement of the personality of the fraudulent party.

Personality rights refer to the rights that people should enjoy based on a certain origin or foundation. The scope of its extension is relatively wide. In this case, the author focuses on analyzing the two rights that are most relevant to support the viewpoint.

First, the right to spouse. The spouse right refers to the basic identity rights of the spouses between the spouses, indicating that the spouse's identity interests are exclusively controlled by the rights, and no other person can infringe. It includes the right of mutual respect between husband and wife, the right of spouse's personal freedom, the right to name, the right to decide on matrimonial residence, the obligation to live together, the duty of loyalty, and the right to act in daily affairs. In this case, the fraud party infringed on the loyalty of both spouses in the spouse right. The loyalty obligation is also called the exclusive exclusive obligation of the spouse's sex life. Both spouses have the obligation to be faithful to each other. No party may be an extramarital sex with others. The fidelity obligation of husband and wife is a statutory obligation. If one spouse violates loyalty, extramarital sex with others will cause great harm to the other party's reputation, status and dignity. The marital sex behavior of Ren Moumou and others formed the result of pregnancy and childbearing, and it was a great harm to the reputation and dignity of Beicun.

Second, the right to birth. The right to birth refers to the right of citizens to decide whether or not to have children in accordance with the law. Under the policy of family planning for a couple to have a child, the fraudulent party cannot reproduce the same child with the fraudulent party. In most cases, the fraudulent party has raised the non-children for many years, and some have already Missed the best childbearing age or had been sterilized, the only legally childbearing channel enjoyed by the fraudster was blocked, and his reproductive rights suffered serious violations.

In summary, from the perspective of legal recognition, it is most reasonable to deal with fraudulent support disputes from the perspective of tort liability. When defining the scope of compensation, the fraudulent party can be compensated for mental damage from the perspective of infringement of personality rights. The legitimate rights and interests of the fraudulent party maintain the normal marriage order of the public.

(Author: Chongqing Wulong County People's Court)

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