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Chapter 5 Questions and Answers about Marriage and Inheritance (4)
The "Interpretation of the Supreme People's Court on Several Issues Concerning the Application (Marriage Law of the People's Republic of China) (II)" stipulates that when the people's court hears and interprets the cases of dissolution of cohabitation relationship, except that the cohabitation relationship requested by the party concerned belongs to the situation of "a person with a spouse cohabiting with others", The people's court shall not accept it.For disputes involving property division and child custody, the people's court shall try the case according to law.

That is to say, cohabitation with other spouses is an act expressly prohibited by the Marriage Law. If the party concerned requests the people's court to dissolve the cohabitation relationship, the people's court shall of course accept the request and terminate the cohabitation relationship according to law; This kind of relationship is not a social relationship protected by law. If the parties sue only to terminate the cohabitation relationship, the people's court should not accept it.However, if the parties file a lawsuit on the division of property and child custody during the cohabitation period, it is a civil legal relationship adjusted by law, and the people's court should accept it and equally protect the legitimate rights and interests of the children and the parties.

12. What evidence support is required for divorce fault compensation?
Cheng and Wang were introduced to get married in 2001, and after the Spring Festival in 2002, Cheng went out to do business.After a dinner with a friend in October 2004, Wang had an improper sexual relationship with the friend. A certain man Cheng returned home during the Spring Festival of 10 and found his wife was pregnant. He believed that his wife had been unfaithful to him, and took advantage of the opportunity when he went out to do business, to live with others, resulting in pregnancy.After the mediation was invalid, Cheng Mouman filed a divorce lawsuit in the People's Court and demanded that Wang Moufee pay 2005 yuan in damages.

The people's court found out during the trial that: 2004. Wang's pregnancy was indeed caused by an improper sexual relationship with a friend after a dinner with friends in October 10. It was not cohabitation with others, but this behavior led to divorce The main reason; [-]. Cheng Mouman has no evidence to prove that Wang Mou was living with others at home during his business abroad, and he still cannot submit the evidence of Wang Mou's cohabitation with others at home during the period stipulated by the people's court. evidence.Finally, the court ruled:

[-]. Grant the plaintiff Cheng Mouman's request for divorce.

7. Cheng Mouman's request for compensation of [-] yuan for marriage damages shall not be supported.

Analysis according to law
1. The plaintiff Cheng Mouman's divorce request has sufficient evidence.

Cheng Mounan went out to do business for family life. Although he did not return for a long time, it is really understandable. Wang Moumou should abide by social morality at home and live a down-to-earth life.But Wang did not do it. Although the pregnancy was caused by an accidental loss of love at a friend's dinner, it was still a serious violation of social morality. As the husband, Cheng Mouman's feelings are the root cause of the breakdown of the family and marriage relationship. The provision in the "Marriage Law" that "husband and wife should be faithful to each other" mainly requires the specificity of the sexual life between husband and wife. It is precisely because of Wang's violation of this provision that she seriously hurt her husband's feelings and led to marital affection. Cheng Mouman filed for divorce only after breaking up. Article 32 of the "Marriage Law" stipulates that if one of the following acts occurs, if the mediation is invalid, there are five situations in which divorce should be granted, the fifth of which is: "other circumstances that lead to the breakdown of the relationship between husband and wife", the people's court is based on the "Marriage Law" "The provisions of the judgment granting divorce.

2. The evidence cited in Cheng's request for compensation of 7 yuan for marital damage is not sufficient.

Compensation for marital damage is stipulated in Article 46 of the "Marriage Law", which means that the party without fault has the right to file a claim for compensation against the party at fault during divorce. Any party without fault can file a claim for compensation. Article 46 of the "Marriage Law" stipulates that the scope of claiming damages is (1) bigamy; (2) having a spouse living with others; (3) committing domestic violence; (4) abuse, abandonment of family members.Leaving these four situations, the innocent party at the time of divorce cannot claim damages.The plaintiff in this case, Cheng Mouman, claimed that his wife, Wang Mou, was pregnant by cohabiting with others while he was out doing business. The people's court did not support the claim for damages of 7 yuan for the following two reasons:

(1) Wang's pregnancy does not apply to the provisions of "having a spouse cohabiting with others".There is a spouse cohabiting with others. Article 2 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application (Marriage Law of the People's Republic of China) (2004) states that "a spouse cohabiting with others" refers to a spouse who lives with the opposite sex outside of marriage. Not in the name of husband and wife, living together continuously and stably.The people's court found out in the trial that Wang's pregnancy was caused by Wang's accidental loss of love during a dinner with friends in October 10. It cannot be called cohabitation, but what ordinary people call "adultery". "Behavior, according to the interpretation of the Supreme People's Court, constituting cohabitation should meet the following three elements: ① opposite sex outside marriage; ② in the name of husband and wife; ③ continuous and stable cohabitation.Obviously, Wang's pregnancy was not caused by "continuous and stable cohabitation with the opposite sex outside of marriage", and did not meet the constitutive requirements of "a person with a spouse cohabiting with others". The grounds that she was pregnant due to cohabitation with others” were untenable and should not be recognized.

(2) Cheng Mouman has no evidence to prove the cause of action of "Wang Moumou took advantage of the opportunity of going out to play with others".The reason Cheng Mouman filed for divorce was that "Wang Moumou took advantage of the opportunity of going out to do business and lived with others."Therefore, the burden of proof should be borne. Cheng has no evidence, and the mere fact that Wang is pregnant cannot prove that "Wang took advantage of the opportunity to go out for business to live with others." During the period specified by the people's court, Cheng still Relevant evidence cannot be submitted, according to Article 2 of the "Evidence Regulations": "The parties have the responsibility to provide evidence to prove the facts on which their own claims are based or the facts on which the other party's claims are based. There is no evidence or the evidence is not enough to prove If the fact claimed by the parties concerned, the parties who bear the burden of proof shall bear the adverse consequences." According to the "Marriage Law" and its interpretation and the spirit of the "Regulations on Evidence", the people's court ruled that Cheng Mouman's request for compensation of 7 yuan for marriage damages was not valid. support.

tips

If one of the parties asks for divorce fault compensation, he can look for evidence from four angles: one is the evidence of the other party’s bigamy, the other is the evidence of the other party’s cohabitation with others; the third is the evidence of the other party’s domestic violence; , Evidence of abandonment of family members.

It should also be noted that the prerequisite for claiming divorce fault compensation is that you have no fault for the divorce.

Article 30 of the Interpretation of the Supreme People's Court on the Application of the Marriage Law of the People's Republic of China (40) stipulates: Inform the parties in writing. When applying Article No. 40 of the Marriage Law, the following different situations should be distinguished: (40) If the innocent party who meets the provisions of Article No. 40 of the Marriage Law as the plaintiff files a claim for damages to the people's court based on this article, it must be (40) If the defendant does not agree to the divorce and does not file a claim for damages based on the provisions of Article [-] of the Marriage Law No. ([-]) In a divorce case in which the party without fault is the defendant, the defendant did not file a claim for damages based on Article [-] of the Marriage Law at the first instance. If the defendant did not file a claim during the second instance, the people's court should conduct mediation. If the mediation fails, notify The parties shall sue separately within one year after the divorce."

13. What are the legal consequences for tearing up evidence in divorce proceedings?
A female Guo was a witness in the case of Xu v. He and others for returning the bride price. One day, she came to a certain court in a certain city court and asked to see the transcript of the court's investigation of the case the day before yesterday.When checking the investigation record, Guo Xun tore up the record while others were not prepared, stuffed it into her mouth, and tried to swallow it with her mouth covered.Seeing this, the judge quickly forcibly peeled off her hands and ordered her to spit out the transcript. After trying her best to piece together, the main content of the transcript was basically restored.How should we deal with this kind of behavior of Guo Mounv?
Analysis according to law
Article 102 of the "Civil Procedure Law" stipulates: "Where a litigation participant or other person commits any of the following acts, the people's court may impose a fine or detain him according to the severity of the circumstances; if a crime is constituted, criminal responsibility shall be investigated according to law:

([-]) Falsifying or destroying important evidence, obstructing the trial of the case by the people's court;
([-]) Preventing witnesses from testifying by means of violence, threats, or bribes, or instigating, bribing, or coercing others to give false testimony;
([-]) Concealing, transferring, selling off, or damaging property that has been sealed up or seized, or property that has been counted and ordered to keep, or that has been frozen;
([-]) Insulting, slandering, framing, beating, or retaliating against judicial personnel, litigation participants, witnesses, translators, appraisers, inspectors, or persons assisting enforcement;

([-]) obstructing judicial officials from performing their duties by violence, threats or other methods;

([-]) Refusing to perform a legally effective judgment or ruling of the people's court.

The people's court may impose a fine on or detain the main person in charge or the person directly responsible for the unit that has committed one of the acts specified in the preceding paragraph; if a crime is constituted, criminal responsibility shall be investigated according to law. "

Since Ms. Guo's behavior has violated the provisions of paragraph 1 and constituted an act of obstructing civil proceedings, the court may decide to impose a fine or judicial detention on her.

tips

Note that if the behavior in this case is serious, it may constitute the crime of helping to destroy or falsifying evidence.This crime refers to inciting or assisting parties to conceal, destroy or falsify evidence in litigation activities, and the circumstances are serious.

The object of this crime is the normal activities of the judiciary, and the object is the parties.If it is not helping the party but helping others other than the party to destroy or forge evidence, it cannot constitute this crime.The so-called parties include both parties to criminal proceedings, such as victims, private prosecutors, criminal suspects, defendants, plaintiffs and defendants in incidental civil proceedings, etc., as well as parties to civil proceedings, such as plaintiffs, defendants, co-litigants, Third parties, etc., also include parties to administrative litigation such as plaintiffs and defendants.

14. Can the privacy of others be violated for evidence collection?
He Mouman and Jia Moumou were originally husband and wife. During the divorce proceedings, his wife Jia Moumou suspected that her husband He Mouman had an affair with her female student Zhang Mou.In order to obtain evidence, his wife Jia XX invited photographers to take pictures of her husband He XX's infidelity. Unexpectedly, she secretly filmed the bathing scene of her mother-in-law, He XX-nan's two brothers, and female student Zhang XX.After He Mouman sued, the court opened a court hearing on the "right to privacy within marriage" lawsuit.

Analysis according to law
This is a lawsuit caused by improper collection of evidence for divorce, but the lawsuit itself reflects the problem of how citizens should correctly collect evidence. From this case, a woman named Jia hired others to secretly film He Mounan’s infidelity. While taking a bath, the footage of Li's mother, brother Li, and Jia's female disciple was also filmed. It can be said without a doubt that this behavior not only violated He's personal privacy, but also violated He's mother. , Brother He, and female disciple Jia's female disciple, etc.Because their personal domain that they do not want to be known has been actually violated, not only being peeped by others, but also photographed, so that their personal information, private affairs and personal domain are exposed to others in the fixed form of photos.

We know that the so-called privacy is a kind of personal information, private affairs and personal fields that have nothing to do with public interests and group interests, and the parties do not want others to know, interfere or intrude.Since privacy is a kind of personality right, privacy must be protected by law when it is treated as a personality right.With the progress of society, people pay more and more attention to the protection of personal privacy, and their voices are getting louder.In 2001, the Supreme Court clearly put forward the legal protection of the right to privacy in the Interpretation of Several Issues Concerning the Determination of Liability for Mental Damage Compensation in Civil Torts, thus ending the long-standing situation of no legal basis for the right to privacy. It should be said that it is the construction of the legal system. an important progress.In this case, in order to obtain evidence of her husband He Mouman and his female disciple, Jia Mounan hired others to take pictures of He Mouman in the shower. The purpose was to obtain evidence, but her behavior violated He Mouman’s personal integrity. privacy.Although the scope of dissemination is limited, after all, there are still others who have seen these photos of He Mouman and others taking a shower. As far as this fact is concerned, the establishment of the infringement will not be affected by the size of the public scope.

With regard to the act of secretly photographing and secretly recording, after the introduction of the "Regulations on Evidence", some people think that the law no longer prohibits the act of secretly photographing and secretly recording, that it can be legalized, and that all evidence obtained from secretly photographing and secretly recording can be used as evidence.This is actually a misinterpretation of the judicial interpretation of the Supreme Court, because the Supreme Court clearly pointed out in this evidence rule: Evidence obtained by infringing on the legitimate rights and interests of others or violating the prohibitive provisions of the law cannot be used as the basis for determining the facts of the case.That is to say, the parties shall not infringe upon the legitimate rights and interests of others when obtaining evidence; shall not obtain evidence by violating the prohibitive provisions of the law.In this case, in order to obtain evidence of misconduct between her husband He Mouman and the female disciple, Jia hired others to obtain evidence by secretly taking photos, regardless of whether the photos she secretly took were inappropriate or not, and whether the photos she took secretly were spread outward. , does not affect the constitution of an infringement of privacy, because the act of secretly taking photos not only infringes on the legitimate rights and interests of others, but also violates the prohibitive provisions of the law.

tips

When specifically determining whether the act of secretly filming and recording violates the right to privacy, the behavior should be investigated from the following aspects: First, to examine whether the lawful rights and interests of others are damaged when carrying out the act of secretly filming and recording. Deliberately belittling the reputation of others or spreading rumors about others will damage the legitimate rights and interests of others and infringe on the privacy rights of others. The so-called evidence of secretly filming and recording should be confirmed as invalid or illegal; Whether it violates the prohibitive provisions of the law at the time, if it violates the prohibitive provisions of the law when carrying out the act of secretly photographing and secretly recording, such as using illegal means such as violence, coercion, and deception, even if relevant evidence is obtained through secretly photographing and secretly recording, it is still due to violation of the prohibitive provisions of the law The third is to investigate whether the act of secretly filming and secretly recording violates social morality. If the act of secretly filming and secretly recording is contrary to common sense and simply uses vulgar, despicable, and indecent methods in order to obtain evidence, it is also not acceptable. treated as valid evidence.

15. Can an IOU signed only by the husband and the creditor is a relative of the husband serve as proof of the joint debt of the husband and wife?
Zhang was married for 3 years, and her husband died of cancer. After the matter was settled, Zhang’s in-law’s family took out a will made by her husband during his illness. The will stated: When the two got married to buy houses and furniture , I also borrowed some money during my illness. These loans are regarded as joint debts of the husband and wife and are repaid with the joint property of the two.And showed the IOU signed by her husband before his death.Zhang believes that when the two bought houses and furniture and other items when they got married, the money given by the relatives of both parties should be a kind of gift. Now the man uses it as a debt to establish an IOU, which cannot be regarded as a joint debt.Then, is the IOU signed only by the husband unilaterally and the creditor is a relative of the husband as a joint debt?

Analysis according to law
In the case of divorce, as far as the husband and wife are concerned, there is a difference between the identification standard of joint debt and the identification standard of creditor claiming that a certain debt is joint debt of husband and wife.The following is a brief discussion on the recognition of joint debts only when the husband and wife divorce.

Article 41 of my country's "Marriage Law" stipulates: "When divorced, the debts originally incurred by the husband and wife living together should be repaid jointly. If the common property is not enough to pay off, or if the property is owned by each of them, the two parties shall agree to pay off; if the agreement fails, the people's The court ruled." In principle, the debts incurred by the husband and wife for the joint life during the marriage relationship shall be recognized as joint debts of the husband and wife, and shall be handled in accordance with Article 41 of the "Marriage Law" when divorced.The crux of the problem is: what is the "debts incurred by husband and wife living together"?
(End of this chapter)