Civil and Commercial Perspective... Can you claim the return of alimony and claim mental loss after fraudulently raising children born out of wedlock?
Published:
2024-08-05
In September 2018, Wang and Dong got married. During the existence of the marriage relationship, Dong gave birth to a son, Wang Xiaomou. As Wang Xiaomou grew up, neighbors often joked to Wang, saying that Wang Xiaomou was too handsome to be like Wang, and listened to similar languages. Gradually, the relationship between Wang and Dong became more and more tense, and the two parties agreed to divorce. After the divorce, Wang felt more and more that Wang Xiaomou was not his own, so he followed the advice of his friends and conducted a paternity test. The result of the test was unexpected. Wang Xiaomou, who had been raised for many years, was not born to him. Therefore, Wang wants to sue Dong to return alimony and compensate 500000 yuan for mental losses. So should Wang's demands be supported?
Introduction
The second paragraph of Article 1071 of the the People's Republic of China Civil Code stipulates that the biological father or mother who does not directly raise a child born out of wedlock shall bear the child's living and education expenses until the child can live independently. It can be seen that raising minor children is a legal obligation of parents.
1. brief
In September 2018, Wang and Dong got married. During the existence of the marriage relationship, Dong gave birth to a son, Wang Xiaomou. As Wang Xiaomou grew up, neighbors often joked to Wang, saying that Wang Xiaomou was too handsome to be like Wang, and listened to similar languages. Gradually, the relationship between Wang and Dong became more and more tense, and the two parties agreed to divorce. After the divorce, Wang felt more and more that Wang Xiaomou was not his own, so he followed the advice of his friends and conducted a paternity test. The result of the test was unexpected. Wang Xiaomou, who had been raised for many years, was not born to him. Therefore, Wang wants to sue Dong to return alimony and compensate 500000 yuan for mental losses. So should Wang's demands be supported?
After Wang learned that he had no blood relationship with Wang Xiaomou, he certainly had the right to recover the alimony paid during the period when Dong gave birth to Wang Xiaomou and he was fraudulently dependent on Wang Xiaomou. From Wang's point of view, Dong had an improper relationship with others to give birth to children during the marriage relationship, which caused great mental damage to him. He has the right to demand the return of alimony and at the same time ask Dong to compensate for his mental loss.
2. lawyer says
First, the applicable conditions of divorce damages.
Article 1091 of the the People's Republic of China Civil Code stipulates: "If one of the following circumstances leads to divorce, the innocent party has the right to claim damages: (1) bigamy; (II) cohabitation with others; (III) domestic violence; (IV) maltreatment or abandonment of family members; (V) other major faults". In this case, the provisions of this article cannot be applied to claim compensation because there is no cohabitation, and the birth of children in an improper relationship with others during the marriage does not necessarily constitute the compensation element of "cohabitation with others outside marriage.
Second, this case is not suitable for compensation according to the provisions of the judicial interpretation, because it has been divorced and does not meet the procedural conditions.
Item (I) of Article 88 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Code of the the People's Republic of China Civil Code stipulates: "If the non-fault party who meets the provisions of Article 1091 of the Civil Code is the plaintiff who files a claim for damages in the people's court on the basis of the provisions of this article, it must be filed at the same time as the divorce proceedings." Therefore, after divorce, the litigation of the wrong party in the direction of no fault to recover compensation for moral damages does not meet the conditions for the exercise of the right to claim damages for divorce in the marriage law.
Third, there are two general opinions about the basis for Wang to ask Dong to take responsibility. One is unjust enrichment, one is infringement. The unjust enrichment theory holds that Wang mou was cheated to raise his illegitimate child and fulfilled the legal obligation of raising the child instead of the child's biological father. the child's biological father made a profit without legal reasons, which constitutes unjust enrichment. if Wang mou can determine the identity of Wang xiaomou's biological father, he can ask the biological father and dong mou to share the responsibility. The infringement theory holds that Dong knew clearly that Wang Xiaomou was not Wang's biological child, there is no legal obligation to support, Dong's deception caused Wang to suffer spiritual and property losses, in line with the constituent elements of tort, the author agrees with the latter point of view.
Fourth, Dong cheated on his marriage and became pregnant and gave birth to a child. Wang Xiaomou was not Wang's biological child, which not only violated Wang's right of reputation, but also violated Wang's right of personality and personality interests. Wang had no legal obligation to raise, but because of Dong's deception, he regarded Wang Xiaomou as a biological child and fulfilled the obligation to raise, which caused Wang to suffer mental and property losses, which met the constituent elements of the tort. According to the the People's Republic of China Civil Code of the People's Republic of China, The relevant provisions in the Part of Personality Rights, the Part of Tort Liability and the Supreme People's Court's Interpretation on Several Issues Concerning the Determination of Liability for Mental Damage in Civil Tort, dong should bear tort liability.
Attached to relevant laws and regulations
(1) the People's Republic of China Civil Code
Article 996 If the injured party chooses to claim liability for breach of contract due to the breach of contract by one of the parties, which damages the personality rights of the other party and causes serious mental damage, the injured party shall not be affected in its request for compensation for mental damage.
Article 1043 Families should establish a good family style, promote family virtues, and attach importance to the construction of family civilization.
Husband and wife should be faithful to each other, respect each other and care for each other; family members should respect the old and love the young, help each other, and maintain equal, harmonious and civilized marriage and family relations.
Article 1091 Where a divorce is caused by any of the following circumstances, the innocent party shall have the right to claim damages:
(I) bigamy;
(II) cohabitation with others;
(III) domestic violence;
(IV) abuse, abandonment of family members......
(V) have other major faults.
2. Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Part of the the People's Republic of China Civil Code
Article 39 Where the father or mother brings a suit in a people's court requesting denial of paternity and has provided necessary evidence to prove it, and the other party refuses to make a paternity test without evidence to the contrary, the people's court may determine that the claim of the party denying paternity is valid.
If the father or mother and the adult child sue for confirmation of the paternity and provide necessary evidence to prove it, and the other party refuses to make a paternity test without evidence to the contrary, the people's court may determine that the claim of the party confirming the paternity relationship is established.
Article 42 The term "alimony" as mentioned in Article 1067 of the Civil Code includes children's living expenses, education expenses, medical expenses and other expenses.
Article 88 When accepting a divorce case, the people's court shall inform the parties in writing of the relevant rights and obligations of the parties as stipulated in Article 1091 of the Civil Code. In applying Article 1091 of the Civil Code, the following different situations shall be distinguished:
(I) the innocent party who complies with the provisions of Article 1091 of the Civil Code as the plaintiff files a claim for damages to the people's court on the basis of the provisions of this article, it must be filed at the same time as the divorce proceedings.
(II) a divorce case in which the innocent party is the defendant in accordance with the provisions of Article 1091 of the Civil Code, if the defendant does not agree to the divorce and does not file a claim for damages based on the provisions of that article, a separate lawsuit may be filed.
(III) a divorce case in which the party without fault is the defendant, the defendant did not file a claim for damages based on Article 1091 of the Civil Code in the first instance, and the people's court shall conduct mediation during the second instance; if the mediation fails, the parties shall be notified Separate prosecution. If both parties agree that the case should be tried jointly by a people's court of second instance, the people's court of second instance may make the judgment together.
(Statement: This article is based on the author's experience summary of the point of view, only for the exchange of learning)
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