同居关系纠纷案例汇编 | 法宝双语案例
昨天
本期双语案例推送李希康与张建弟同居关系子女抚养纠纷上诉案等有关同居关系纠纷类案例。 目录
Contents 1.李希康与张建弟同居关系子女抚养纠纷上诉案 Li Xikang v. Zhang Jiandi (appeal case regarding dispute over custody of child born out of wedlock) 2.夏某诉蒋某某同居关系析产纠纷案 Xia v. Jiang (appeal case regarding dispute over division of property under the non-martial cohabitation) 3.武海霞诉洪竹青欠款案 Wu Haixia v. Hong Zhuqing (case regarding dispute over default on payment)
一、李希康与张建弟同居关系子女抚养纠纷上诉案
【裁判要旨】
我国实行婚姻登记制度，未办理结婚登记而以夫妻名义共同生活的男女，属于同居关系。当事人因同居期间子女抚养产生纠纷的，也可以向人民法院起诉。当事人同居期间所生子女为非婚生子女，其与婚生子女享有同等的权利。父母与子女之间的关系，不因父母同居关系解除而消除。同居关系解除后，子女无论由父或母直接抚养，仍是父母双方的子女，父母对于子女仍有抚养和教育的权利和义务。不直接抚养非婚生子女的生父或生母，应当负担子女的生活费和教育费，直至子女能独立生活为止。人民法院在处理子女抚养问题时，都是从有利于未成年人健康成长的原则出发的。哺乳期内的子女，以随哺乳的母亲抚养为原则。哺乳期后的子女，如双方因抚养问题发生争执不能达成协议时，由人民法院根据子女的权益和双方的具体情况判决。因此当事人因同居期间子女抚养纠纷提起诉讼的，一方以另一方居无定所，没有固定收入，不利于孩子成长为由，请求改判孩子由己方抚养的，人民法院应当根据子女的权益和双方的具体情况结合当事人提供的证据进行判决。
[Judgment Abstract]
China applies marriage registration system, under which if a man and a woman live together in the name of husband and wife but have not yet registered their marriage, it should be deemed that cohabitation relationship has been established. The parties concerned may file an action with the people's court if they dispute over the custody of their child during their cohabitation. The child born by the parties under the cohabitation relationship or child born out of wedlock should be deemed as illegitimate child, but they should enjoy the same rights as the children born in wedlock should do. The relationship between parents and their child will not be dissolved following the dissolution of the cohabitation relationship of the parents. After the dissolution of cohabitation relationship, no matter whether the father or the mother gets the custody of the child, both parties remain the parents of the child, and will share the rights and responsibilities of supporting and educating the child. The biological father or mother, even if he or she does not have the custody of the child, should still pay for the child's support and education until the child can depend on himself or herself eventually. When dealing with an issue involving child custody, a people's court should follow the primary principle of being good for the healthy growth of the child. If the child is in the period of lactation, the mother should have the priority to get the custody of the child. For a child out of the period of lactation, if the parents dispute the child custody and fail to reach an agreement, the people's court should render a judgment by taking into account the rights and interests of the child as well as the specific conditions of both parents. In conclusion, if the parties concerned file an action regarding the dispute over the custody of their child, and one party thereof appeals to the court for changing the custody of the child on the ground that the other party cannot provide favorable conditions for the growth of the child as he/she has neither regular residence nor fixed income, the people’s court should render its judgment in light of the rights and interests of the child, the specific conditions of both parents, and the evidence provided by both parties.
【法宝引证码】CLI.C.6373840
[CLI Code] CLI.C. 6373840 (EN)
二、夏某诉蒋某某同居关系析产纠纷案
Xia v. Jiang (appeal case regarding dispute over division of property under the non-martial cohabitation)
【裁判摘要】
《关于人民法院审理未办结婚登记而以夫妻名义同居生活案件的若干意见》第十条规定，解除非法同居关系时，同居生活期间双方共同所得的收入和购置的财产，按一般共有财产处理。同时，根据《物权法》的相关规定，虽然男女双方长期以夫妻名义同居生活，但是由于其不具有家庭关系，所以其在同居期间取得的财产应视为双方按份共有。但是，在双方无法证明自己的出资额的情况下，由于双方同居时间较长，对财产的取得均有贡献，所以对于该同居财产，认定为双方等额享有更为适宜。因此，在上述情况下，双方应依法均分同居财产。
[Judgment Abstract]
In accordance with Article 10 of the Several Opinions of the Supreme People's Court on the Handling by the People's Court of the Cases of Cohabitation in the Name of Husband and Wife without Marriage Registration, when canceling an illegal cohabitation relationship, the incomes obtained and properties purchased by both parties during the cohabitation period shall be handled as jointly owned property. Besides, according to the Property Law, the man and the woman cohabitate in the name of husband and wife without family relationship, their property obtained during the period should thereby be co-owned by shares. However, if the parties cannot prove their capital contribution, it is appropriate that the property obtained during the cohabitation period should be equally divided because they have cohabited for a long time and made their respective contribution to the property. Therefore, under such circumstances, both parties concerned should equally divide the property earned during the cohabitation period in accordance with law.
【法宝引证码】CLI.C.4057186
三、武海霞诉洪竹青欠款案
Wu Haixia v. Hong Zhuqing (case regarding dispute over default on payment)
【裁判摘要】
男女双方终止同居关系之时，男方为女方出具欠条，承诺向女方支付精神损害赔偿的行为实际上是一个民事行为。合法的民事行为即民事法律行为才能受到法律的保护，《民法通则》第五十五条对民事法律行为成立的要件作了规定，即（1）行为人具有相应的民事行为能力；（2）意思表示真实；（3）不违反法律或者社会公共利益。由此可见，只要男方当事人在出具欠条的时候，具备了上述三个要件，该行为才能成为民事法律行为，女方才能据此来主张相应的权利。
[Judgment Abstract]
It is, by nature, a civil conduct that the man issues an IOU to the woman as a promise of compensation for the woman’s mental anguish upon the termination of their non-martial cohabitation. Only legitimate civil acts, i.e. civil juristic acts, should be protected by the law. Under Article 55 of the General Principles of the Civil Law of the People’s Republic of China, a civil juristic act should meet the following requirements: (1) the actor has relevant capacity for civil conduct; the intention expressed is genuine; and (3) the act does not violate the Law or the public interest. Therefore, the woman should have the right to the compensation on the strength of the IOU only when the man’s conduct of issuing the IOU becomes a civil juristic act pursuant to the aforesaid three requirements.