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浅议重婚案件的损害赔偿的权利主体、依据及其他

发布于:2019-01-02 18:46

重婚,是指已婚男、女又与他人结婚或是明知他人有配偶而与之结婚的违法行为,即某人已经有了一个婚姻关系,后又与他人缔结了第二个婚姻关系,前者叫前婚,后者叫后婚。重婚有两种形式:一是法律上的重婚。即前婚未解除,又与他人办理了结婚登记手续而构成的重婚。只要双方办理了结婚登记手续,不论双方是否同居,是否举行婚礼,重婚即已形成;二是事实上的重婚,即前婚未解除,又与他人以夫妻名义同居生活,虽然未办理结婚登记手续,但事实上已构成重婚。我国的婚姻法明确禁止重婚行为。《刑法》第二百五十八条规定:“有配偶而重婚的,或者明知他人有配偶而与之结婚的,处2年以下有期徒刑或者拘役”。可见,应按重婚罪追究刑事责任的,是实施重婚行为的有配偶和明知故犯的无配偶者;反之,不知他人已有配偶而与之结婚的无配偶者,不是重婚罪的主体。后一种情况,往往是由于有配偶的欺骗、隐瞒而造成的,对于没有重婚故意的无配偶者,仅产生婚姻无效的民事后果,并不产生重婚罪的刑事后果。
 
Bigamy refers to the illegal act that a married man or woman marries another person or knows that another person has a spouse and marries him. That is to say, a person already has a marriage relationship and then concludes a second marriage relationship with another person. The former is called the former marriage, and the latter is called the later marriage. Bigamy has two forms: one is legal bigamy. That is to say, bigamy is formed by not dissolving the previous marriage and going through the marriage registration procedures with other people. As long as both parties have gone through marriage registration procedures, no matter whether they live together or have a wedding, bigamy has come into being; secondly, the actual bigamy, that is, the former marriage has not been dissolved and living together with other people in the name of husband and wife, although the marriage registration procedures have not been completed, in fact, it has constituted bigamy. China's Marriage Law explicitly prohibits bigamy. Article 258 of the Criminal Law stipulates: "Whoever has a spouse and bigamy, or knows that another person has a spouse and marries him, shall be sentenced to fixed-term imprisonment of not more than two years or criminal detention." It can be seen that the criminal responsibility for bigamy should be investigated according to the crime of bigamy, which is committed by the spouse and the unmarried person who knowingly commits bigamy; on the contrary, the unmarried person who knows no other person's spouse and marries with it is not the subject of the crime of bigamy. The latter situation is often caused by deception and concealment of spouses. For those who have no intent to bigamy, the civil consequences of invalid marriage are only produced, and the criminal consequences of bigamy are not produced.
 
 
 
一、重婚案件损害赔偿的权利主体
 
I. The Right Subject of Damage Compensation in Bigamy Cases
 
 
 
1、离婚案件中的无过错方
 
1. No-fault party in divorce cases
 
 
 
婚姻法第四十六条规定:“有下列情形之一,导致离婚的,无过错方有权请求损害赔偿:
 
Article 46 of the Marriage Law stipulates that if one of the following circumstances leads to divorce, the party without fault shall have the right to claim damages:
 
 
 
 
 
(一)重婚的;
 
(1) bigamy;
 
 
 
(二)有配偶者与他人同居的;
 
(2) having a spouse who cohabits with others;
 
 
 
(三)实施家庭暴力的;
 
(3) those who commit domestic violence;
 
 
 
(四)虐待、遗弃家庭成员的。”
 
(4) maltreatment or abandonment of family members."
 
 
 
最高人民法院关于适用《中华人民共和国婚姻法》若干问题的解释第二十八条规定:“婚姻法第四十六条规定的“损害赔偿”,包括物质损害赔偿和精神损害赔偿。涉及精神损害赔偿的,适用最高人民法院《关于确定民事侵权精神损害赔偿责任若干问题的解释》的有关规定” ,因此,在离婚诉讼中,作为无过错的一方配偶,有权提出损害赔偿,包括精神损害赔偿。对此,司法实践已无疑异。
 
Article 28 of the Supreme People's Court's Interpretation of Several Questions Concerning the Application of the Marriage Law of the People's Republic of China stipulates that "Damage Compensation" stipulated in Article 46 of the Marriage Law includes material damage compensation and spiritual damage compensation. Where compensation for mental damage is involved, the relevant provisions of the Interpretation of Several Questions Concerning the Determination of Liability for Mental Damage in Civil Tort of the Supreme People's Court shall apply. Therefore, in divorce proceedings, as a spouse without fault, he has the right to propose compensation for mental damage, including compensation for mental damage. In this regard, judicial practice has undoubtedly been different.
 
 
 
2、无效婚姻中无过错一方
 
2. No-fault Party in Invalid Marriage
 
 
 
如前所述,在重婚案件中,前婚无过错方有权提出赔偿要求,婚姻法第四十六条已有规定,最高人民法院的司法解释亦作了明确规定。但是,在现实生活中,对于后婚中不知情、无过错的一方,是否有权提出损害赔偿,鲜有人提及。明知他人有配偶而与之结婚,本身就是过错方,当然无权向另一方提出赔偿要求。但是,不知他人已有配偶而与之结婚者,其也是重婚行为的受害者。特别是后婚时间较长,且已生儿育女者,其受到的精神伤害丝毫不亚于合法婚姻的配偶。如果对其受到的损害不予赔偿,显然有失公平、公正。因此,笔者认为其有权提出相应的赔偿要求。
 
As mentioned earlier, in bigamy cases, the party without fault in the previous marriage has the right to claim compensation. Article 46 of the Marriage Law has already stipulated, and the judicial interpretation of the Supreme People's Court has also clearly stipulated. However, in real life, few people mention whether the uninformed and innocent party in the later marriage has the right to claim damages. Knowing that another person has a spouse and marrying him is in itself the fault party, of course, it has no right to claim compensation from the other party. However, those who marry someone without knowing that they have a spouse are also victims of bigamy. Especially for those who have been married for a long time and have children, they suffer no less mental harm than their spouses who are legally married. If it is not compensated for the damage it has suffered, it is obviously unfair and impartial. Therefore, the author believes that it has the right to make corresponding claims for compensation.
 
 
 
二、重婚案件损害赔偿之法律依据
 
2. Legal Basis of Damage Compensation in Bigamy Cases
 
 
 
离婚案件中,涉及重婚的,无过错方要求损害赔偿的法律依据即是《婚姻法》第四十六条。
 
In divorce cases involving bigamy, the legal basis for the party without fault to claim damages is Article 46 of the Marriage Law.
 
 
 
而在确认婚姻无效的案件中,作为无过错方的“配偶”,其要求赔偿,无法适用《婚姻法》第四十六条,因为该条适用的前提是“离婚”案件。而重婚是无效的,“配偶”只能提确认婚姻无效之诉,而无权提出离婚的请求,自无《婚姻法》第四十六条的适用余地。
 
In the case of affirming the invalidity of marriage, as the "spouse" of the no-fault party, its claim for compensation can not be applied to Article 46 of the Marriage Law, because the premise of this article is "divorce" case. Bigamy is invalid, and "spouse" can only bring a lawsuit to confirm the invalidity of marriage, but has no right to make a divorce request, so there is no room for the application of Article 46 of the Marriage Law.
 
 
 
笔者认为,婚姻作为人生的一件大事,绝大多数的人非常认真而又谨慎,一旦被骗,其所受到的伤害是巨大的。而重婚者虚构未婚或已离异的事实,骗取异性的信赖,而与其结婚,侵犯了他人婚姻自主的权利,其实质是对他人人格权的侵犯,应承担侵权的责任。《侵权责任法》第二条规定:“侵害民事权益,应当依照本法承担侵权责任。本法所称民事权益,包括生命权、健康权、姓名权、名誉权、荣誉权、肖像权、隐私权、婚姻自主权、监护权、所有权、用益物权、担保物权、著作权、专利权、商标专用权、发现权、股权、继承权等人身、财产权益。”婚姻自主权属于人身权中的人格权的一种,依法应受保护。《最高人民法院关于确定民事侵权精神损害赔偿责任若干问题的解释》第一条规定:“自然人因下列人格权利遭受非法侵害,向人民法院起诉请求赔偿精神损害的,人民法院应当依法予以受理:(三)人格尊严权、人身自由权。”无过错方可以依据上述规定向法院提出精神损害赔偿的诉讼请求。
 
In my opinion, as a major event in life, most people are very serious and cautious. Once deceived, the harm they suffer is enormous. The bigamy person fabricates the fact that he is unmarried or divorced, deceives the trust of the opposite sex, and marries him, which infringes the right of other people's marriage autonomy. Its essence is the infringement of other people's personality rights, and should bear the responsibility of infringement. Article 2 of the Tort Liability Law stipulates that "If infringement of civil rights and interests is committed, the tort liability shall be borne in accordance with this Law. The civil rights and interests referred to in this Law include the rights of life, health, name, reputation, honor, portrait, privacy, marital autonomy, guardianship, ownership, usufructuary, security, property, copyright, patent, trademark exclusive right, discovery right, stock right, inheritance right and other personal and property rights and interests. Marriage autonomy is a kind of personality right in personal rights, which should be protected by law. Article 1 of the Interpretation of the Supreme People's Court on Several Questions Concerning the Determination of Compensation Liability for Mental Damage in Civil Tort stipulates that: "Where a natural person has suffered unlawful infringement of the following personal rights and has brought a suit to the People's Court for compensation for mental damage, the People's Court shall accept it in accordance with the law: (3) the right to personal dignity and personal The party without fault may submit a claim for compensation for mental damage to the court in accordance with the above provisions.
 
 
 
三、重婚者被追究刑事责任情况下的损害赔偿问题
 
3. Compensation for Damage in the Case of Bigamy Being investigated for Criminal Liability
 
 
 
重婚是刑事自诉案件。如果相关的当事者未提刑事自诉,那么,在离婚案件或确认婚姻无效的案件中,其自然可以对重婚者提出损害赔偿。但是,如果前婚的配偶或后婚无过错的“配偶”提出刑事自诉或向公安机关控告,最后重
 
Bigamy is a case of criminal private prosecution. If the relevant parties do not bring criminal private prosecution, then, in divorce cases or confirming the invalidity of marriage cases, they can naturally claim damages for bigamy. However, if the former spouse or the "spouse" who is not at fault in the latter marriage brings a criminal private prosecution or complains to the public security organ, the last one is serious.

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