Case No.: (2020) Gan 05 Min Zhong No. 124
First instance claims
B filed a lawsuit with the court of first instance to request: 1. Require A to immediately stop the infringement, eliminate the impact, and publicly apologize to B; 2. Order A to compensate B for emotional damage and other expenses totaling 100,000 yuan; 3. The litigation costs in this case shall be borne by A.
The court of first instance found the facts
A met B's wife C during October 2015, and because C was engaged in massage work, A often came to the store to massage and consume, and further interacted closely with him on the grounds of teaching him to drive and make appointments for dinner. A then offered to open a house, and the two parties had frequent sexual relations, resulting in C becoming pregnant and giving birth to a young daughter on October 23, 2016. B was unaware of this at the time.
In early September this year, B accidentally discovered that his wife's mobile phone showed that he had an ambiguous relationship with A, only to learn that the two parties had maintained an improper relationship for several years. For this reason, B suffered criticism from others and suffered a great blow of mental pain. B went to A's house to ask for an explanation, and there was a physical conflict between the two parties, but A refused to admit his mistake and refused to compensate B for the above-mentioned losses, and the negotiations between the two parties were fruitless, and now B is physically and mentally exhausted, and the family is discordant and even broken, so B sued the court and filed the above appeal.
Judgment of the court of first instance
This case is a tort liability dispute. Through the facts examined by the court, it can be seen that B is not the biological father of the child, and the biological father of the child A, B has no legal obligation to raise the child, B unknowingly raises the child born to A and C, A's act is obviously at fault, and B should bear the corresponding compensation for the damage caused by B.
Regarding B's losses, the court of first instance made the following determinations:
1. Compensation for moral damages, etc., B claims 100,000 yuan. The court of first instance held that A's act was seriously at fault, and the mental harm to B was obvious, and taking into account factors such as the length of maintenance, the degree of fault of A, the consequences of the damage, and the local living standard, the emotional damage consolation money was set at RMB 40,000 at the discretion of the court.
Second, the paternity test fee, B claimed 3200 yuan, A did not give an opinion. The court of first instance held that this claim was supported by corresponding instruments.
3. Lawyer's fee of 5,000 yuan. The court of first instance held that the cost was not an inevitable expense, and B's claim was groundless in law, so the court of first instance did not support the claim.
4. Regarding B's claim that A is required to return the vehicle. The court of first instance held that whether the vehicle gifted by A to C was joint property should be divided between B and his wife in divorce proceedings, and this case was not dealt with.
5. With regard to B's application for A to immediately stop the infringement, eliminate the impact, and publicly apologize to B, the court of first instance held that citizens' personal dignity is protected by law and prohibits the use of insults, slander, etc. to damage citizens' reputations. Where the right to reputation of citizens or legal persons has been infringed, they have the right to demand that the infringement be stopped, their reputation restored, the impact eliminated, an apology and compensation for losses. Based on the impact of the incident and the degree of fault of A, the court of first instance held that A should publish an announcement in the local news media, the Daily Daily, announcing an apology to B for A's conduct.
In summary, in accordance with Articles 110 and 179 of the General Provisions of the Civil Law of the People's Republic of China, Articles 2, 6 and 15 of the Tort Liability Law of the People's Republic of China, Article 106 of the General Principles of the Civil Law of the People's Republic of China, Articles 8 and 10 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Determination of Liability for Moral Damage in Civil Tort, and Article 2 of the Several Provisions of the Supreme People's Court on Evidence in Civil Proceedings, the judgment is:
1. A shall publish an apology announcement in the Daily within five days of the effective date of this judgment, the content of which shall be reviewed by this court in advance, (if the court fails to perform within the time limit, the court will publish the main content of this judgment in the Daily Newspaper, and the necessary expenses shall be borne by A);
2. A shall pay a total of RMB 43,200 for all economic losses of B within 10 days from the effective date of the judgment;
3. B's other claims are dismissed.
The appellant asserts
A's appeal request: revoke the original judgment in accordance with the law and dismiss B's lawsuit request; The costs of the proceedings in this case were borne by B. Facts and Justifications:
1. There is no legal basis for the court of first instance to accept this case, and A's qualifications as the subject of the right to be claimed are inconsistent. According to the first paragraph of Article 29 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application (I), the qualifications of the subject to bear the liability for damages are clearly stipulated, that is, "the subject who bears the liability for damages provided for in Article 46 of the Marriage Law is the spouse of the innocent party to the divorce proceedings." "If, during the marriage relationship, the parties do not sue for divorce but file a claim for damages solely in accordance with the provisions of this article, the people's court will not accept it." B and C are not currently divorced, and B cannot file for damages.
2. Divorce torts are specific, and there are only four legal torts of bigamy or cohabitation, domestic violence, abuse and abandonment of family members. In the present case, there is no such case and B has no basis to hold A liable.
B argued that the case had nothing to do with the divorce dispute, but that A's tort liability was pursued. The first-instance judgment was correct, and the original judgment was upheld.
Empire of the Law, Zan 1692
The court of second instance found the facts
During the second instance trial of this court, A submitted evidence around the appeal request in accordance with the law. The court organized the parties to exchange and cross-examine evidence. As to the facts of the second-instance dispute between the parties, this court finds the following:
Jiangxi Province Xinyu City Intermediate People's Court (2019) Gan 05 Min Zhong No. 787 Civil Judgment 1 copy, intended to prove that B has received compensation from C in the divorce proceedings. B testified that the divorce judgment had nothing to do with the case. The Court believes that the judgment is an effective judgment made by the Court, which is legal and true. The divorce dispute between B and C contains the content of damages for injury caused to B, which is relevant to this case, and this court accepts it.
Jiangxi Province Xinyu City Intermediate People's Court (2019) Gan 05 Min Zhong No. 787 Civil Judgment: 1. Dissolution of the marriage relationship between the parties; 2. A daughter born in wedlock shall be directly raised by B until she reaches adulthood; 3. C shall pay RMB 50,000 within 10 days from the effective date of this judgment; 4. The house jointly owned by B and C shall be owned by B, and C shall assist B in the formalities for changing the property rights of the house within 30 days from the effective date of this judgment; 4. The vehicle involved in the case originally owned by both parties under the name C and owned by 270,000 yuan C; 5. The child is directly raised from C to adulthood; 6. C's other claims are dismissed.
Judgment of the court of second instance
The court of second instance held that the case was a tort liability dispute. The focus of the dispute in this case was whether B could claim damages from A.
The court held that the establishment of B's claim depends on whether A constitutes infringement. First, B considered that A had violated his right to reputation, so he demanded compensation for moral damages. According to Article 2 of the Tort Liability Law of the People's Republic of China, "Those who infringe on civil rights and interests shall bear tort liability in accordance with this Law." "Civil rights and interests" as used in this Law include personal and property rights and interests such as the right to life, the right to health, the right to name, the right to reputation, the right to honor, the right to portrait, the right to privacy, the right to marital autonomy, the right to guardianship, the right to ownership, the right to usufruct property, the right to use a security interest, the right to copyright, the right to use a trademark, the right to discover, the right to shares, the right to inheritance, and other personal and property rights. "Infringement of the right to reputation refers to the perpetrator's act of publishing or broadcasting words, language and pictures that infringe on the right to reputation of others through various acts, such as publishing or broadcasting in newspapers, magazines, the Internet, radio, television, etc., resulting in a lower social evaluation of the victim. In this case, the extramarital affair between A and C was between the two people, which was relatively private and did not constitute an infringement of B's right to reputation.
Supreme Case Guide, Like 1
Secondly, B's right to claim damages from A is based on the fact that B and C divorced due to the extramarital affair between A and C, resulting in B and C's divorce, so A should bear tort liability. The court held that whether A constitutes other infringement depends on whether A's act meets the constituent elements of other tort liability, that is, the illegal act, the damage result, the fault, and the causal relationship between the illegal act and the result. The mainland marriage law only stipulates the fidelity obligations between husband and wife, regulating the rights, obligations and responsibilities of legal husband and wife, and "third parties" who intervene in the marriage relationship of others are not subject to the adjustment of the marriage law. In essence, B's right to claim damages comes from Article 46 of the Marriage Law of the People's Republic of China: "In any of the following circumstances, the innocent party has the right to claim damages: (1) bigamy; (2) Where a person with a spouse cohabits with another person; (3) Committing domestic violence; (4) Mistreatment or abandonment of family members. "In this case, B admits that C had been living at home before the divorce, and A and C only constitute long-term adultery, not bigamy or cohabitation. Therefore, A's adultery is not within the scope of Article 46 of the Marriage Law of the People's Republic of China, does not constitute tort, does not bear tort liability, and his behavior falls within the scope of moral adjustment and should be morally condemned. Article 29 of the Interpretation (I) of the Supreme People's Court on the Application of Several Issues stipulates: "The subject liable for damages as provided for in article 46 of the Marriage Law is the spouse of the innocent party to the divorce proceedings. "Although B, as the innocent party, has the right to claim damages, it can only claim against C, not A. Moreover, from the facts of the case ascertained by this court, B had also asserted relevant rights and received corresponding support in the subsequent divorce proceedings with C, so B's claim for moral damages against A was improper. A is not a qualified defendant in this case.
In summary, A's appeal request is upheld, and this court upholds it; The first-instance judgment found that the facts were clear and the law was wrongly applied and should be corrected. In accordance with Article 2 of the Tort Liability Law of the People's Republic of China, Article 46 of the Marriage Law of the People's Republic of China, Article 29 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application (I), and Item 2 of the first paragraph of Article 170 of the Civil Procedure Law of the People's Republic of China, the judgment is as follows:
1. Revoke the civil judgment of the Yushui District People's Court of Xinyu City, Jiangxi Province (2018) Gan 0502 Minchu No. 7817;
2. Dismiss B's claim
From: Xiaoli's statement