First, the confusion and thinking caused by the case
(a) In the absence of clear provisions in the law, can the court accept cases and make judgments according to the basic legal principles and the inherent spirit of the law?
"Kissing right injury" case: Tao was injured by driving, and a car accident caused many injuries such as laceration of Tao's upper lip, which constituted a level 10 disability. Tao believes that every time she kisses her husband, she will feel pain because of the flaky scar left by her upper lip, causing psychological obstacles. Tao sued the court for compensation. The court held that there was no basis for the proposal of the right to kiss, and did not support Tao's claim for compensation for mental damage that could not be kissed. Tao's physical rights and health rights were violated, and 500 yuan should be compensated for mental damages.
"Sexual rights violated" case: Zhang, a driver of a sanitation center, was injured when he backed up at work, helping to close the door behind the truck. The result of forensic identification is: erectile dysfunction caused by trauma. Zhang's wife, Wang, believes that her husband lost his sexual function in a car accident, which seriously damaged his physical and mental health. The husband and wife sued the environmental health center as the defendant, demanding compensation for various losses of 6.5438+0.5 million yuan, including compensation for mental losses caused by sexual rights. The court held that sexual rights are an aspect of citizens' right to health, and Wang's sexual rights as a wife have been violated. The court ruled that the environmental sanitation office compensated Zhang for medical expenses, disability living allowance, disability compensation and other losses of 654.38 million yuan, and compensated Wang for mental damages of 654.38 million yuan.
Of the two cases, the appeal of the former case was not supported by the judge, because the judge thought that "kissing right" was a presumed right, and the appeal of the latter case was supported by the judge, because the judge thought that "sexual right" was an aspect of citizens' right to health and a legal right. In fact, sexual rights are obviously not clearly defined in China's civil law, and the court not only accepts the litigation claims caused by them, but also makes compensation claims in favor of the plaintiff. No matter how the judge who tried the case explained it, the basis of his ruling obviously did not come from the clear provisions of the law, but from the basic principles and internal spirit of the law. The right to kiss is also a right that is not clearly stipulated by law, so the right to kiss is not supported by law.
(two) in the case of only legal principles and no legal rules, can the court directly invoke this principle to judge cases?
Violation of the Loyalty Agreement: I signed the Loyalty Agreement when I registered my marriage with Jia. The agreement stipulates that husband and wife should respect and care for each other after marriage, and have a sense of morality and responsibility for family, spouse and children. The agreement also stipulates the "liability for breach of contract": during the marriage, if one party betrays the other due to moral quality problems, it shall compensate the other party for the loss of reputation and mental damage of 300,000 yuan. Shortly after the marriage, Jia found that her husband not only continued to associate with his ex-wife, but also had an affair with other women, so he sued for divorce and demanded compensation. The court found the Loyalty Agreement valid and sentenced Zeng to pay the plaintiff a penalty of 300,000 yuan.
(three) in the case of clear provisions of the law, can the court make a judgment according to legal principles rather than clear provisions of the law?
Cases left over by the "third party": Married Huang and Zhang rented a house openly and lived together in the name of husband and wife. Later, Huang was diagnosed with advanced liver cancer. During the hospitalization, Zhang accompanied Huang's bed. Huang made a notarized will and gave Zhang half of the housing allowance, provident fund, pension and original house payment after his death. After Huang's death, his legal wife Jiang refused to execute the will, and Zhang sued the court and asked the court to judge Jiang to fulfill the will according to law. The court of first instance declared the bequest agreement invalid because it violated "social morality" and rejected the plaintiff's claim. The court of second instance held that although the will was legal in form, its contents violated the law and public interests. In addition, the inheritance right between husband and wife is a concrete manifestation of the effectiveness of marriage. Ginger should have the right of inheritance, and Huang bequeathed the property to Zhang, which essentially deprived Jiang of his legal right of inheritance. It violates the law and should be invalid. Therefore, the appeal is dismissed.