[author]Li Shanping
[content]
Loyalty Agreement in the Era of the Civil Code
Li Shanping
Ph.D. Shanghai University of Finance and Economics Law School
Abstract:The loyalty agreement between husband and wife is an identity agreement that contracts legal loyalty obligations． In the era of the Civil Code， the validity of loyalty agreements should be recognized in principle， for the following reasons： Loyalty agreement satisfies the effective requirement of civil legal act，and this agreement is neither illegal nor contra bonos mores． And it is the embodiment of the principle of autonomy of civil law in marriage and family． Loyalty obligation is a legal obligation， and loyalty agreement is a restatement and elaboration of legal loyalty obligations． The recognition of its validity can make up for the lack of sanctions for violation of legal loyalty obligations． Although the loyalty agreement can be binding between husband and wife， it cant be claimed to be fulfilled because of the personal nature of the agreement． Breach of the loyalty agreement establishes liability for breach of contract． The liquidated damages agreed upon by the parties shall be valid in principle． If the agreed liquidated damages are excessively high， the liquidated damages discretionary rules may be applied with reference． When the agreement between the parties on the consequences of breach of contract is invalid due to an act contra bonos mores， it may be deemed that the liquidated damages have not been agreed， and the non breaching party shall be allowed to claim compensation for mental damages for breach of contract． Moreover， the liquidated damages or compensation for breach of contract should be allowed without divorce．
Key words: Loyalty Agreement, Identity Agreement, Liability for Breach of Contract, Liquidated Damages, Damages
Table of Contents:
1. Loyalty Agreements as Identity Agreements
1.1 Critical analysis of established views
1.2Loyalty Agreements as Identity Agreements
2. Validity of loyalty agreements and their exceptions
2.1 Loyalty agreements should be valid in principle
2.2 Exceptions to invalidity
3.Effectiveness of Loyalty Agreement and Its Liability for Breach of Contract
3.1 Loyalty agreement can not be applied for compulsory performance
3.2 The effect of liquidated damages and discretionary reductions
3.3 Statutory Liability for Breach of Contract
3.4 Justification of Marital Indemnity
4.Conclusion
Husband and wife in the marriage relationship during the conclusion of the loyalty agreement behavior is common, such as wife A and husband B agreed, A and B in the marriage relationship should abide by the obligations of fidelity between husband and wife, if the violation, you need to suffer a series of adverse consequences, such as the dissolution of the marriage relationship between the two sides, violation of the one party “out of the house”, to abandon the child custody, or compensation of a certain amount of money to the contracting party. Are such agreements valid? If one of the parties does violate the duty of fidelity, can the other party be required to bear the adverse consequences according to the agreement? There are no direct provisions in our legislation on these issues. At present, only the civil code of the People's Republic of China (hereinafter referred to as the civil code) article 1043, paragraph 2 of the duty of fidelity between husband and wife slightly mentioned, but the obligation of fidelity stipulated in the article is whether it is a moral obligation, or a legal obligation, has been controversial.
Trial practice and doctrine also present multiple positions on the validity of fidelity agreements. The author searched for relevant cases in the “Unlitigated Case Database”, and found that there were a total of 45 cases in which “l(fā)oyalty agreement” and “fidelity agreement” were mentioned in the opinions of the court, and the time span of the judgments was from The time span of the judgment is from 2013 to 2019. After excluding irrelevant cases and cases in which the lower court's judgment was invalidated due to appeal or application for retrial, the sample data was obtained as 28 cases. Among them, 13 rulings found loyalty agreements valid, 14 rulings invalid, and one ruling that the agreement in question was a moral agreement and did not fall within the scope of the court's jurisdiction. Similarly, the theories are divided between the “validity theory”, the “invalidity theory” and the “moral agreement theory”.
The enactment of the Civil Code has provided new ideas to answer the above questions. There are at least four new rules in the Civil Code: Article 464 (2) of the Civil Code (identity agreements shall be governed by the provisions of the Contracts Section), Article 1087 (1) of the Civil Code (division of property in divorce shall be in favor of the party who is not at fault), Article 996 (moral damages may be claimed in case of violation of the right of personality due to a breach of contract), and Article 1001 (the protection of the right of identity may be governed by the Rights of Personality Section). In the following, it is first argued that the duty of fidelity is a legal rather than a moral obligation, and that a loyalty agreement is a status agreement rather than a moral agreement or a gentleman's agreement, followed by an analysis of how to determine the validity of a loyalty agreement, then a detailed discussion of the legal effect of a loyalty agreement and its liability for breach of contract, and finally a conclusion.
1. Loyalty Agreement as an Identity Agreement
1.1 Critical Analysis of Existing Views
Regarding the nature of loyalty agreements between spouses, the following viewpoints are primarily observed:
1)Moral Agreement Theory: This theory posits that a "marital loyalty agreement" should be considered a moral agreement, not falling within the domain of legal norms but rather within the realm of moral adjustment, and therefore should not be endowed with legal enforceability.
2)Natural Obligation Theory: According to this theory, if the content stipulated in a marital loyalty agreement does not violate laws or public order and morality, it can be recognized as a natural obligation. "Under the Natural Obligation Theory, while a ‘loyalty agreement’ lacks enforceability, if voluntarily performed, it cannot be reclaimed. This ensures that the vested interests of the loyal party in a marriage are protected, mitigating the legal risks associated with the ‘invalidity theory,’ where voluntarily performed compensation can still be reclaimed at any time."
3)Contractual Debt Theory: This theory contends that a loyalty agreement between spouses is essentially a financial agreement between them. "If one party breaches the duty of loyalty, the other party must bear the consequences of changes in their financial relationship. Thus, the loyalty agreement does not establish, alter, or terminate any personal status relationship but is instead a property agreement concluded by individuals in a specific personal status relationship." In essence, the loyalty agreement serves as a prearrangement for the damages one party would have to bear if their breach of loyalty leads to a divorce.
4)Mixed Theory of Identity and Contractual Debt: This view suggests that a marital loyalty agreement encompasses both personal and property aspects centered on the mutual duty of loyalty between spouses. Specifically, a loyalty agreement involves both personal and property relations, including spiritual compensation based on identity and conditional property payments. It constitutes an identity-based legal relationship aimed at spiritual compensation and does not fall under the scope of contractual obligations as defined by the Contract Law. However, once conditions are met, the property payment becomes a matter of contractual debt, making it a special type of contractual agreement.
5)Alternative Identity Agreement Theory: This theory holds that the loyalty agreement, as a means of stipulating mutual loyalty obligations between spouses, is an identity agreement; however, it is deemed non-moral and should not be recognized as legally valid.
This Paper's Perspective:The Moral Agreement Theory has clear flaws. It is grounded on the premise that the duty of loyalty is a moral obligation. However, the duty of loyalty itself possesses a dual nature, encompassing both moral and legal obligations. Therefore, a loyalty agreement centered around the duty of loyalty between spouses is not merely a moral agreement but carries legal significance.
The natural debt argument is inconsistent with the nature of the debt of a loyalty agreement. First, natural debt is an extremely confusing concept, with both so-called unlawful debts (gambling debts) and original statutory debts (debts that are time-barred). “Natural debt has a vague connotation, is highly prone to ambiguity, and should have been used with caution.” The natural debt doctrine does not spell out in detail whether its view is analogous to gambling debts or to debts for which the statute of limitations has expired, but either way, they are not similar or analogous. Second, while natural debts are not enforceable, not all unenforceable debts are natural debts. The reason why the loyalty agreement is unenforceable is because the main obligation of payment agreed upon in the agreement involves personal attributes. What is unenforceable is only the obligation agreed upon, and the adverse consequences of breaching the agreement can be enforced. Finally, the natural debt doctrine is not more favorable to the protection of the loyal party. The natural debt doctrine protects only when the unfaithful party voluntarily fulfills the adverse property consequences, but in most cases the unfaithful party will not voluntarily fulfill a property sanction that is so unfavorable to him or her. Instead, the interests of the defending party can only be properly remedied by the law if it is recognized that the loyalty agreement is a contractual debt and constitutes a breach of contract when one party violates the duty of loyalty.
Neither the debt-contract doctrine nor the hybrid doctrine is appropriate. The contract of credit argument is correct in recognizing that a loyalty agreement is also a contract in the broad sense, but it misunderstands the purpose for which a loyalty agreement is entered into. Whereas a fidelity agreement is primarily intended to urge the parties to comply with the duty of fidelity as an obligation of status between husband and wife, a contract of debenture, as a contract of property, is mostly concluded to satisfy the financial needs of at least one of the parties. Debenture contracts are directly applicable to the provisions of the Contracts Section of the Civil Code, whereas fidelity agreements, as acts of status, are subject to the provisions of the Marriage and Family Section in preference to those of the Contracts Section in accordance with article 464, paragraph 2, of the Civil Code, in the absence of which the provisions of the Contracts Section are applicable. Similarly, the hybrid theory is also biased. The property relationship involved in the fidelity agreement is only an agreement between the two parties on the liability for breach of contract, which belongs to the second obligation of the contract, and cannot be used as the sole reason for recognizing that the fidelity agreement has the nature of a debt contract.
The alternative identity agreement is contradictory. The said although superficially recognized the husband and wife on the fulfillment of the duty of loyalty agreement belongs to the identity of the agreement, but also that such agreement is not legally binding, so the point of view and the moral agreement that there is no difference.
2.Loyalty agreement is identity agreement
2.1 Traditional identity behavior theory and its update
The traditional theory of kinship law divides identity acts into three categories (“trichotomy”), “namely, identity acts formed for the purpose of creating, abolishing or changing kinship relations; identity acts attached to such acts on the premise of formed identity acts; identity acts performed on others on the basis of certain identity relations; identity acts performed on others on the basis of identity relations; identity acts performed on others on the premise of formed identity acts. identity act of domination over another person on the basis of the identity of the person concerned”. Regarding the identity act of domination, some scholars questioned that “the perpetrator of the identity act of domination does not have the intention of pursuing a certain legal effect, so this kind of act should be excluded from the identity act”. So, there is the so-called “dichotomy” of the emergence of identity behavior is divided into pure identity behavior and identity property behavior, the former refers to the direct occurrence or loss of identity relationship for the purpose of legal behavior, and the latter refers to the identity and identity based on the occurrence of the property relationship for the purpose of behavior, such as husband and wife's family agent behavior, husband and wife's property The latter refers to acts that occur on the basis of identity but for the purpose of property relations, such as the act of spousal family agency, the act of spousal property contract; pure identity acts refer only to identity acts of formation, i.e., acts whose content is the establishment, annulment or change of identity relations.
Although these two categorizations are far-reaching, they are purely the theories held by different scholars, and are neither expressly provided for in legislation nor pronounced by judicial adjudicators, and are by no means an incontrovertible truth. On the contrary, the above categorization methods all have certain problems. First of all, the identity behavior governed by the three-part method is specific to its time. Once there was the concept of the head of household in the family system, and the marriage system was also husband's right marriage, so there was the domination of one party of a specific identity relationship over the other. Nowadays, however, such domination is no longer possible in the modern, egalitarian model of marriage and family. For example, in Japan, under the old law, a woman's capacity to act was limited after marriage, and a husband could dominate his wife's body; however, the new law has abolished this provision, and because the rights related to the body and personality (broadly defined as personality rights) are considered to be the most fundamental rights, even a husband cannot interfere with his wife. The status of not only husband and wife is equal, but also that of parents and children, as well as that of other family members. Moreover, domination embodies a kind of possession, control and disposal, which is incompatible with the modern position of family members enjoying status rights and interests and fulfilling status obligations in accordance with the law. Therefore, the identity act of domination should be renamed as the identity act of fulfillment.
Secondly, the bifurcation method defines pure identity acts too narrowly, and there is no reasonable basis for excluding acts concerning the exercise of identity rights and the fulfillment of identity obligations from identity acts. Expansion of the scope and intensity of identity obligations is also a form of manifestation of changes in legal relations. The so-called legal act is an intentional act aimed at establishing, changing or eliminating a specific civil legal relationship (civil rights and obligations). Therefore, any intentional expression intended to cause changes in civil rights or civil obligations can be included in the scope of legal acts. Expansion of the scope or intensity of the identity obligation certainly also belongs to the change (strengthening) of the civil obligation. Therefore, loyalty agreements are fully consistent with the concept of legal acts.
Finally, in addition to the loyalty agreement, the typical fulfillment of identity behavior also includes alimony agreement, custody agreement, guardianship agreement, etc., these agreements between the parties originally existed in a specific identity relationship, these agreements itself does not create a new identity relationship, nor does it change or eliminate the existing identity relationship, that is, it does not create a new identity rights nor create a new identity obligations, but only in the established identity It is a further refinement of the existing identity rights and obligations, and is a specific agreement on the exercise of identity rights and the fulfillment of identity obligations. These agreements occur on the basis of identity relations and are not intended to achieve a certain economic purpose, so they are identity acts in the true sense of the word. The most important difference between formative identity agreements and performative identity agreements lies in the fact that, based on state coercion, the former generally has a registration procedure, while the latter, since it does not involve the establishment of an identity relationship, is not subject to registration or authorization, and the weight of private consent is more decisive. In this sense, compared with the formation of identity behavior, the performance of identity behavior is closer to the traditional property-based legal acts, the Civil Code General Provisions and the rules of the contract is also more applicable.
2. The agreement of fidelity is an agreement on how the duty of fidelity as a duty of identity is to be performed.
According to the general theory, the duty of fidelity refers to the duty of chastity between husband and wife, that is, exclusively conjugal sexual life obligations; broad duty of fidelity also includes one spouse shall not maliciously abandon the other, and shall not sacrifice the other's secrets or interests for the benefit of a third party. Mutual chastity is the basic condition of conjugal union. Article 1043 (2) of the Civil Code of China provides that “husband and wife shall be faithful to each other ......”, which is the explicit expression of the duty of fidelity between husband and wife in the current law of China.
Since the above legal provisions are too general in principle, the parties often choose to extend and strengthen this duty of fidelity by concluding an agreement, which is the loyalty agreement. Loyalty agreement is the obligation of fidelity between husband and wife as the main obligation to pay the contract. The duty of fidelity is by its nature a duty of omission. The statutory duty of fidelity usually refers only to physical non-betrayal, and does not cover mental cheating (except in a few countries, such as France and Portugal), because the law cannot and should not intervene in a person's inner thoughts and feelings. However, the duty of fidelity agreed upon in a loyalty agreement may recognize mental infidelity as an act of infidelity as well, which is an extension in terms of extension. As far as the extension in terms of intensity is concerned, there is often a specific liability agreement in the loyalty agreement for the violation of the agreed duty of fidelity. Whether it is not cheating physically or mentally, the loyalty agreement is pointing to an obligation of omission. Fidelity agreements are thus distinguished from other agreements between spouses, such as “empty bed agreements”.At the same time, the duty of fidelity is an obligation of status, and a fidelity agreement is an agreement that is based on the payment of an obligation of status, thus distinguishing it from other agreements between spouses that involve the payment of property.
Both legal and contractual obligations of fidelity presuppose a legally valid marriage. A fidelity agreement concluded between a man and a woman in a cohabitation relationship has no legal significance. In addition, any behavior of one of the spouses prior to marriage may not be defined as unfaithfulness. Judicial practice varies as to whether there is a breach of the duty of fidelity in cases where one of the spouses (usually the wife) has sexual intercourse with another person prior to marriage, resulting in “fraudulent maintenance”. Some courts have held that such a situation constitutes a breach of the duty of fidelity. However, the opposite position is that there is no duty of fidelity between the parties prior to marriage. This article agrees with the latter position. If one of the spouses has sexual intercourse with another person during the marriage and gives birth to another person's child, this of course constitutes a violation of the duty of fidelity. However, because of the pre-marriage of the two parties do not exist legally valid marriage, so one of the husband and wife before marriage with another person to have sex, after marriage to give birth to a child who is not the other party's biological behavior, not a violation of the duty of fidelity.
The husband and wife's agreement on the duty of fidelity may exist in the form of an agreement or in the form of a clause. In the former case, the agreement is a typical fidelity agreement in the sense that the entire agreement is an elaboration of the duty of fidelity and the consequences of its violation, whereby the duty of fidelity constitutes the main obligation of payment for both parties to the agreement. As for the latter, the clause constitutes the so-called loyalty agreement, while the agreement may also have other aspects of the content of the agreement, the loyalty agreement should be dealt with separately from the other provisions, they have their own independence, can not be mixed. However, as far as the terms of the loyalty agreement are concerned, the duty of fidelity still constitutes the main obligation to pay the terms of the agreement.
As can be seen from the above, the duty of loyalty is a legal identity obligations between husband and wife, and the loyalty agreement is the legal identity obligations of the contractual restatement and refinement of the duty of loyalty as an identity obligations of the duty of loyalty how to perform the agreement, so the loyalty agreement is a kind of identity behavior, belongs to the category of identity agreement.
2. the validity of the loyalty agreement and its exceptions
2.1 the loyalty agreement in principle should be effective
2.1.1 Loyalty agreement to meet the validity of civil law behavior elements
As mentioned earlier, the loyalty agreement is a kind of identity agreement, the essence of a civil legal act. On the one hand, the loyalty agreement as a status agreement, the validity of its judgment in accordance with article 464 (2) of the civil code, in the absence of special provisions, according to its nature can be applied by reference to the relevant provisions of the civil code contract. There is no general rule on the judgment of the validity of contracts in the Contracts Section, and the relevant provisions have been transferred to the General Section. In addition, Article 502 (1) of the Civil Code stipulates that “a contract established by law shall enter into force at the time of its formation, unless otherwise provided by law or agreed upon by the parties”. Accordingly, a loyalty agreement is, in principle, effective from the time of its formation.
On the other hand, as a civil legal act, the validity of the loyalty agreement should be judged by directly applying the relevant provisions of the General Part of the Civil Code. The legal act itself is an abstract concept extracted by the Pendleton system from the sub-titles of civil law. China's Civil Code is also structured accordingly, and the contents of the General Provisions, especially the chapter on legal acts, are also derived from the abstract generalization of specific things (such as various types of agreements) in the Marriage and Family Section. In this sense, unless there is an express provision or special reason, agreements in the Marriage and Family Section shall also be subject to the provisions of the General Provisions. Article 143 of the Civil Code stipulates that a valid civil legal act should have three elements, “This provision is a general clause binding on all kinds of civil legal acts, and it is binding on acts of disposition in the Title of Property, on claims in the Title of Contracts, on marriages and adoptions in the Title of Marriage and Family, and on wills in the Title of Inheritance, etc. “. Thus, as long as a loyalty agreement satisfies these three elements, it should be valid. The crux of the matter is obviously whether the content of a loyalty agreement would generally violate mandatory provisions or be contrary to public order and morals?
It has been argued that a fidelity agreement can create a constraint on personal liberty that ultimately renders the freedom of marriage null and void. In addition, recognizing the validity of the loyalty agreement may easily induce the parties to obtain evidence by any means and violate personal privacy, which is contrary to the protection of the right to privacy under the law. However, these arguments that loyalty agreements are illegal or contrary to custom are not valid. The reasons are as follows: firstly, the duty of loyalty is a legal obligation, the parties only to the agreement of such legal obligations specific. The fact that the statutory duty of loyalty is restated and materialized in a contract cannot be unlawful.
Secondly, a fidelity agreement does not necessarily restrict the freedom of action of the parties. On the one hand, all freedoms are relative, and when a man and a woman enter into a marriage by mutual consent, they take on the obligation to work together to promote marital happiness and fulfillment, and they have to accept a certain degree of “unfreedom”. Based on the nature of marriage, husband and wife should become each other's only sexual partner, and their sexual freedom itself is restricted. As the saying goes, “Marriage is not subject to the whims of the married person; rather, the whims of the married person are subject to the nature of marriage.” Citizens are free to dispose of their personal freedom according to their own will and within the limits permitted by law. A fidelity agreement is a manifestation of the voluntary limitation and restriction of a married person's sexual freedom, and such limitation is the result of the consent of both spouses and is in accordance with the principles and spirit of the Marriage Law, and is in conformity with the public order and morality of the society. On the other hand, if the obligations contained in a fidelity agreement are so harsh that they are deemed to constitute an excessive restriction on the freedom of the perpetrator, the agreement will be invalidated for being contrary to custom (more on this later).
Finally, a loyalty agreement does not ipso facto impede the parties' freedom to divorce or invade their privacy. “While a loyalty agreement may create onerous conditions for divorce, the parties may still choose to divorce upon payment of consideration, and their right to divorce freely is not denied.” In addition, although the abiding party needs certain evidence to prove that the breaching party has violated the loyalty agreement, the evidence does not necessarily have to be obtained through illegal means, and there is no necessary logical relationship between the two.
2.1.2 Loyalty agreement is the embodiment of the principle of autonomy of meaning in the field of marriage and family
For a long time, due to the identity agreement was excluded from the scope of application of the former Contract Law, resulting in the marriage and family field of meaning autonomy and freedom of contract has been unduly neglected. There is even a view that the principle of autonomy of meaning does not apply to the spouses' personal relations, and that one spouse cannot create rights and obligations for the other, and that there is no spousal identity contract. This view is questionable. First of all, the husband and wife personal relationship is not no space for autonomy. Modern society promotes people-oriented, into the individual self-conscious rational society, the emancipation of human nature determines as the subject of people prefer to arrange activities in accordance with their own wishes, including the family domain. “The principle of private law autonomy applies to all private law relations, and marriage and family are subject to its laws.” Autonomy of will should not be excluded from the field of marriage and family, which is a logical necessity for the return of marriage and family law to civil law. Although marriage and family law is mostly mandatory, since it is part of private law, there is bound to be room for the implementation of autonomy of meaning. “Agreements made by husband and wife within the scope of the law ...... on various personal and property relations in marriage, which are clearly expressed, are conducive to the regulation of marital and family relations, and promote and safeguard the harmony of family relations, and should be recognized by the legislation.”
Secondly, there is nothing special about the limitations on autonomy in the area of marriage and the family, and public order and morality remain the main test. According to the “principle of autonomy”, the preference in the design of the civil law system is that the limitations on autonomy should be reduced to the lowest possible level in order to preserve the public interest. In the area of marriage and the family, due to its strong moral and ethical coloring, the limitations on autonomy of meaning in this area are often imposed by good customs. For example, spouses may not enter into a contract that excludes some of the main rights and obligations of the spouses (e.g., non-performance of the obligation of cohabitation or the obligation of fidelity), because such autonomy is contrary to good morals. Thus, there are no special restrictions on autonomy in the area of marriage and the family, but rather restrictions that are inherent in autonomy itself. Loyalty agreement is the husband and wife on their personal rights and obligations of the typical embodiment of autonomy of meaning, such agreement is the principle of civil law autonomy in the field of marriage and family law, should not be erased for the subject of private law, self-management, self-arrangement of the significance of the agreement.
2.1.3 Loyalty agreement is a restatement of the legal duty of loyalty.
A popular doctrinal view is that the duty of fidelity is a moral rather than a statutory duty. This view is also common in practice. But it is not correct. First, a breach of the duty of loyalty can have legal consequences. Before the Civil Code came into force, only major marital faults such as bigamy and cohabitation of a spouse with another person had legal significance (Article 46 of the former Marriage Law);However, article 1087 of the Civil Code, for the first time, includes “care for the party not at fault” as one of the principles for the division of property between spouses in the event of divorce. In other words, the violation of the duty of fidelity, which has not yet reached the seriousness of bigamy or cohabitation of a spouse with another person, will also have specific legal consequences. The significance of the change in this provision is enormous, and has had an immediate impact on judicial practice. In the Pudong New Area People's Court recently concluded a case, the court found that there is evidence to prove that the man has cheated on his wife, is the party at fault in the marriage, so the value of ten million of the couple's common property awarded to the woman, only by the woman to compensate for the man's 30% of the discounted price of the house. In this context, if on the one hand, the “duty of fidelity” is a moral obligation, on the other hand, but also give its violation of the legal consequences, will undoubtedly produce a contradiction in the interpretation of the system.
Secondly, “fidelity” is so important that there is a justification for interpreting “the spouses shall be faithful to each other”, as stipulated in Article 1043 (2) of the Civil Code, as a legal obligation. “In order to maintain the order of family life, it is necessary for the law to regulate, standardize and restrain people's behavior, and relying solely on the moral consciousness of the parties is not sufficient to guarantee the harmony and stability of identity relations.” For the identity relationship established on the basis of marriage, “fidelity” is tantamount to a solid foundation, and “the stability of the marriage relationship depends to a large extent on the fidelity of both parties.” As scholars have noted, spousal infidelity can be as devastating to a marriage as the death of a spouse. In addition, “the duty of conjugal fidelity leads to further physical and spiritual union between the parties, and this intimacy enhances the sense of closeness that arises in the marital relationship between the parties, and through the parties' living together it affects the entire family.” The protection of the marital family by law necessarily requires the legalization of the duty of fidelity between husband and wife. In addition, from the perspective of jurisprudential methodology, all legal provisions have legal significance, and incomplete legal provisions can create legal effects by referring to each other and to other legal provisions. The provisions of article 1043, paragraph 2, of the Civil Code are considered by the commentaries and interpretations to be promotional norms that do not directly create obligations between the parties. However, if the phrase “husband and wife shall be faithful to each other” in Article 1043 of the Civil Code is interpreted as “husband and wife shall be faithful to each other”, it can effectively establish the connection between this article and Article 1087 of the Civil Code, making it possible for this article to be applied and become full of vitality. On the other hand, the interpretation of this article is not the same as that of the Civil Code. On the other hand, this interpretation does not contradict Article 4 of the Interpretation of the Marriage and Family Section of the Civil Code (I) (formerly Article 3 of the Interpretation of the Supreme People's Court on Certain Issues Concerning the Application of the Marriage Law of the People's Republic of China (I)). The main reason for this judicial interpretation is that the duty of fidelity between husband and wife cannot be enforced, and it does not mean that the “duty of fidelity” is recognized as a moral obligation. Although the article itself does not provide for the consequences of a violation, it can be combined with other provisions of the Marriage and Family Section of the Civil Code (e.g., article 1087 of the Civil Code) or concretized by means of a “fidelity agreement” between the husband and wife, in order to safeguard the duty of fidelity of the husband and wife.
Again, the duty of fidelity is both a moral and a legal obligation. This is also a consensus in comparative law. Some countries such as France, Switzerland, Portugal, Austria directly through legislation on the duty of fidelity between husband and wife to be express. There are also some extraterritorial law or the violation of the duty of fidelity is set up as a cause of divorce, so as to indirectly recognize the duty of fidelity between husband and wife; or in the doctrine is widely recognized that the duty of fidelity is a marital obligation of the connotation of the violation of such marital obligations, constitute the other party may request a divorce, and can be based on the request to violate the obligations of the party to bear the responsibility for damages. At the same time, this is also the mainstream position of our theoretical circles. It is also reflected in judicial practice. The Supreme People's Court (hereinafter referred to as the “Supreme Court”) released a batch of typical cases of marital and family disputes on December 4, 2015, in which in the case of Zhou Mou v. Zhang Mou, the Supreme Court explicitly pointed out that mutual fidelity between husband and wife is not only a traditional virtue, but also a legal obligation. The Supreme Court made it clear that mutual fidelity between husband and wife is not only a traditional virtue, but also a legal obligation. In a number of decisions, the courts have also explicitly recognized the validity of loyalty agreements on the grounds that the duty of fidelity is a legal obligation.
Finally, a fidelity agreement is merely a restatement of the statutory duty of fidelity. On the one hand, the duty of loyalty agreed upon by the parties in a loyalty agreement is identical to the statutory duty of loyalty in its core content, i.e., to be faithful and not to betray. On the other hand, the agreed duty of fidelity may be more comprehensive and detailed than the statutory duty of fidelity, or the obligation to fulfill the standard set higher. After all,Statutory obligations are only the minimum code of conduct that the perpetrator should comply with, and it is in principle permissible for the husband and wife to agree, by way of agreement, on behavioral obligations that are appropriately higher than the statutory obligations. In the case of an agreement not to engage in mental infidelity, for example, it is an essential requirement of marriage that spouses remain mentally faithful to each other. Marriage is a union between a man and a woman for the purpose of living together, and marital life is manifested in the common life of the spirit (spiritual union), the common life of the sex (physical union) and the common life of the economy (common household expenses). Mental infidelity on the part of one of the spouses will inevitably affect the common life of the spouses and may cause emotional harm to the other spouse. “The mind controls and influences the body and behavior, and mental fidelity ensures physical fidelity and even marital happiness.”
2.1.4 Fidelity agreements may compensate for the inadequacy of legal sanctions for breach of the statutory duty of fidelity.
Most countries and regions have set harsh legal consequences for the violation of the duty of fidelity, either by making it a cause for divorce or by giving the parties the right to claim damages for the situation. On the contrary, China's Civil Code does not stipulate the general legal responsibility for the violation of the duty of fidelity, and only Article 1091 regulates the two serious violations of the duty of fidelity, namely “bigamy” and “cohabitation with another person”, with divorce as a prerequisite. Although the article has set “other major faults” as a guideline, according to the systematic interpretation, “other circumstances” should refer to “bigamy”, “cohabitation with another person” and other serious violations of the duty of fidelity, with divorce as the requisite. Cohabitation with another person” and other marital fault behavior of the same degree of significance (such as ‘fraudulent maintenance’), only occasional or repeated extramarital sexual behavior, and not in the scope of the article. As for general breaches of the duty of fidelity other than “bigamy” and “cohabitation of a spouse with another person”, it is debatable whether the other spouse can be subject to the application of article 1087, paragraph 1, of the Civil Code.
It has been argued that “ordinary faults in marriage are not sufficient to trigger a skewed treatment in the division of property, and only ‘major faults’ justify a change in the rule of equal division. In this regard, the so-called 'no fault' and Article 1091 'no fault' should be the same understanding and interpretation, that is, both refer to the other spouse's significant fault behavior and divorce and their own spouse who is not significantly at fault for the occurrence of divorce “. However, there are also views that the fault in Article 1087 (1) of the Civil Code refers only to general faults, such as adultery, extramarital affairs, and patronizing prostitutes. In fact, both views are biased. The “fault” referred to in Article 1087 of the Civil Code includes both general faults and major faults. However, since “fault” is only a reference factor for the judge in the division of the joint property of husband and wife, and exists as a general principle of division, lacking objectivity and transparency, the loyal party may not always be able to obtain adequate relief through the provisions of this article. Moreover, the division of property in divorce is essentially a legal system for the division of common property, which is very different from the nature of damages for breach of contract, and the two are not interchangeable.
In this context, the parties should be allowed to enter into a loyalty agreement, a violation of the duty of fidelity to bear the adverse consequences to be clear, which not only helps the legitimate rights and interests of the party without fault relief, but also can effectively make up for the violation of the duty of fidelity of the sanctions of the lack of our laws.
2.1.5 Loyalty agreement can implement the concept of protection of marriage, is conducive to the promotion of good family customs and good customs
The concept of protection of marriage is not only reflected in the constitutional level (article 49, paragraph 1 of the constitution of the People's Republic of China), but also reflected in the civil code of marriage and family (article 1041, paragraph 1) on the relevant provisions. Some scholars have pointed out that the primary value embodied in the rules on matrimonial property law is the protection of marriage. In fact, the protection of marriage is more strongly reflected in the rules of personal status law than in the rules of matrimonial property law. Loyalty agreements are a restatement and refinement of Article 1043 of the Civil Code, which stipulates that spouses should be faithful to each other, which is conducive to the realization of the concept of marital protection. In addition, this kind of loyalty agreement, which restates the legal duty of fidelity, can promote family harmony and stability, and is conducive to the promotion of good family morals and good customs. “The spousal fidelity agreement has a strong binding and deterrent effect on both contracting parties and contributes to marital stability and family harmony, so it should and can be supported by the law.” This notion is also reflected in judicial judgment documents. For example, in the case of Chen Mou v. Gao Mou Divorce Dispute, the court held that “as long as the fidelity agreement is a true expression of the two parties' true intentions and its content does not violate the provisions of the law and does not harm other people or the public interests of society, it should be protected by the law. Furthermore, the finding that the fidelity agreement was valid was in line with the legislative spirit of the Marriage Law, and was conducive to the maintenance of equal, harmonious and civilized marital and family relations.”
To sum up, the loyalty agreement should not only be valid based on the general jurisprudence of legal acts, but also recognize its validity as having unparalleled advantages, and therefore should be recognized as valid in principle, both in terms of legitimacy and practicality.
2.2 Exceptions to invalidity
Loyalty agreement is valid in principle, but as a kind of legal behavior, its exceptions may also be revocable or invalid. On the one hand, if there is a material misunderstanding, fraud, duress or manifest injustice in the conclusion of the loyalty agreement, the parties may revoke the agreement. Of course, just as fraud or duress is not easy to prove in the case of the conclusion of a property agreement, it is equally difficult to prove that the parties' intentions were not true or free in the case of the conclusion of a loyalty agreement. On the other hand, the content of the loyalty agreement, especially on the consequences of breach of contract, if there is a violation of the law or vulgar situation, will lead to the consequences of the agreement is invalid or the agreement as a whole is invalid.
2.2.1 Typical patterns of invalidity of illegal content of the agreement
(1) Violation of the loyalty agreement, i.e., the parties are divorced or obliged to divorce, is invalid.
Divorce as a purely status behavior, its validity needs to meet the specific elements. According to Article 1080 of the Civil Code, in the case of divorce by mutual agreement, the marriage is dissolved when the divorce is registered; in the case of divorce by litigation, the marriage is dissolved when the judgment or conciliation of the People's Court comes into effect. Therefore, even if the parties agree to divorce if one of the parties acts unfaithfully, the agreement is invalid and cannot produce the legal effect of ipso facto termination of the marital relationship. “Loyalty agreements that terminate the marriage relationship, even though such agreements are the true expression of the parties' intentions, do not have legal effect, because the violation of the agreement of loyalty agreement that is divorce violates the mandatory provisions of the law.” In addition, based on the consideration of the freedom of divorce, the agreement that one of the parties is obliged to go through the divorce formalities if he/she violates the fidelity agreement is also invalid. This is because any unilateral promise or mutual agreement that obliges another person to enter into a marriage or divorce violates the mandatory provisions of the law. At the same time, such an agreement also constitutes a violation of public order and morals by infringing on fundamental rights.
Furthermore, if the parties agree in a fidelity agreement that a breach will be considered as a fulfillment of the legal conditions for divorce or a cause for divorce, such an agreement is also null and void. Because according to the civil code, article 1079, paragraph 3, the legal conditions of divorce can only be expressly enumerated in the article, that is, the legal enumeration of the breakup of the relationship as well as the bottom of the situation (other circumstances that lead to the breakup of the couple's relationship), that is, “the cause of divorce (conditions) of the legal”. Moreover, in the trial practice, one of the important reasons for the loyalty agreement is recognized as invalid is that the legal consequences of the loyalty agreement for the divorce of the breach of the party less or no share of the joint property of husband and wife, and thus the court that the agreement is the agreement on the division of property divorce (terms), so that the agreement can only be effective in the registration of the divorce in the divorce is not effective in the litigation in the divorce.
(2) Violation of the fidelity agreement resulting in the loss of child custody or visitation rights is invalid.
According to Articles 27, 34, 1068 and 1084 of the Civil Code, parents have the right and duty to raise and educate their children, which does not change with the divorce of the parents; who is to raise the minor children in the event of a divorce shall be determined by the court on a case-by-case basis in accordance with the provisions of the law, and is not a matter to be determined by prior agreement of the parents within the marriage. Article 1086 of the Civil Code stipulates that, following the divorce of the parents, the parent who does not directly support the children has the right to visit them. This right is also a legal right, inherent in being a parent of a minor, and cannot be denied or waived in advance. Moreover, these rights are mostly embodied as “obligatory rights”, which are certainly rights for one parent, but are more often embodied as a duty, which is particularly important for minor children. The upbringing and education of children by their parents is both a reflection of the nature of the parent-child relationship and a necessity for the children's development. Therefore, the fidelity agreement on one party's violation of the duty of fidelity of husband and wife, resulting in divorce, the loss of child custody or visitation rights, is through the agreement to exclude the parent's legal rights, the agreement is contrary to the provisions of the jus cogens and is invalid. Judicial practice also holds the same position. For example, in the case of Shen Mou v. Yang Moumou Divorce Dispute, the court held that “the agreement on child custody violated the mandatory provisions of the law, and therefore the purpose of the proof was not recognized”.
2.2.2 Typical patterns of invalidity of agreements with contrary content
(1) Invalid Fidelity Agreements with Excessive Restrictions on Personal Freedom
The primary purpose of a fidelity agreement is to restrict the sexual freedom of one of the parties, and such personal restraints are neither illegal nor repugnant. However, if the parties in the agreement agreed to the other personal freedom of one of the spouses, such as not to be alone with the opposite sex, etc., may be excessive interference with personal freedom and invalid. The same position is taken in our trial practice. Comparative law also recognizes the invalidity of contracts that excessively restrict the rights of one of the contracting parties. “A so-called binding contract is contrary to good customs and is understood as a contract that excessively restricts a contracting party in terms of personal or economic freedom, thus leaving him or her more or less at the mercy of the other party.” In addition, the existence of mental infidelity should be strictly defined. Unless a spouse has evidence that the other spouse has established an extramarital romantic relationship with a third party outside the marriage, he or she is not considered to have violated the fidelity agreement. After all, restrictions on spiritual freedom can easily fall into the territory of perverse custom.
(2)Loyalty agreement violation of the consequences of the agreement is too harsh and ineffective
The most typical is the “clean break” clause is invalid. The so-called “clean out” clause, refers to the parties to make a breach of the loyalty agreement should give up all of their personal property and marital property agreement. This kind of agreement is out of the party's autonomy, but it is invalid because it violates public order and morals. Such a harsh economic punishment, is tantamount to depriving the perpetrator of personal freedom. Imagine, a person without any responsibility property, how will in the economy and society? And, such agreement is essentially liquidated damages agreement, but because the agreement is not a specific amount, has the whole, which leads to its discretion.
Judicial practice for the loyalty agreement in the “net out” agreement also holds a negative attitude. In the “Chen v. Cen divorce disputes,” the court held that “the agreement agreed that the defendant will own all the property to the plaintiff, is completely deprived of its rights in the property, there is a very harsh nature of punishment, should not be used as a specific civil rights and obligations of both parties to determine the agreement, should not be used as a couple of the division of common property and the plaintiff's claim. It should not be used as an agreement to determine the specific civil rights and obligations of the two parties, nor should it be used as the basis for the division of the common property of the husband and wife, as well as for the moral damages and economic compensation claimed by the plaintiff. In the case of Zhang A v. Qiu A Divorce Dispute, the court similarly held that “even if Qiu A is the party at fault for violating the duty of fidelity, he still has his legitimate property rights and interests. If the agreement is performed according to this agreement may cause Qiu A life difficulties, and Zhang A profits greatly, the interests of both parties are too imbalanced, so it was found that can not be completely in accordance with the second half of the agreement signed by the two parties to perform the content of the agreement”.
It is worth noting that, the husband and wife made the obligation of the violator to give up his or her personal property and the husband and wife's common property agreement is invalid, but give up a particular property rights agreement, even if expressed as “net out of the house”, but according to the content of the agreement as long as it can be pointed to a particular property, and in terms of the actor's economic situation is not too harsh, it is valid. Is not too harsh, is a valid agreement. Such as in the “Cheng Mou 1 v. Zhang divorce dispute case”, the court held that “guarantee Cheng Mou 1 promise, if it did not do the guarantee five things, Cheng Mou 1 voluntarily net household Zhouwangmiao 40. From the guarantee analysis, Cheng Mou 1 and Zhang Mou only on the common property of the couple 40 house agreement, does not involve other common property, debt, should be valid agreement.
3.1 the effectiveness of the loyalty agreement and its responsibility for breach of contract
3.1 the loyalty agreement may not apply for compulsory performance
Loyalty agreement as a valid identity agreement in principle, is bound to the parties to produce binding force. This binding force is reflected in two aspects: one, the husband and wife of any party to extramarital affairs with the opposite sex, especially not extramarital sex obligations; Second, if the violation, should bear the adverse consequences of the agreement. In other words, “a fidelity agreement requires fidelity on the one hand and compensation on the other”. They are divided into obligations of the first and second nature of the agreement.
Although a fidelity agreement is binding on the spouses and creates a valid status obligation for both spouses, it is not enforceable by appeal. The reasons for this are as follows: firstly, according to article 464, paragraph 2, and article 580, paragraph 1, subparagraph 2, of the Civil Code, if the obligation stipulated in the identity agreement is “unfit for enforcement”, the party who has complied with the agreement may not appeal for its enforcement. The significance of compulsory performance is mainly to strengthen the binding nature of the debt. However, certain contractual obligations are personal or trustworthy and are not suitable for enforcement. It may exist in the property contract, for example, the entrusted contract of the fiduciary affairs of the execution of the obligation, the performance contract of the performance obligation, etc., if such debtor's person to impose mandatory, will be contrary to the respect for the personality of the modern society and the basic value of personal freedom should be protected.It may also be found in status agreements, such as the obligation to marry under a marriage contract, the obligation to provide support of a non-monetary nature (e.g., “frequent visits”), the obligation to accompany the husband and wife, the obligation to cohabit, and the obligation of fidelity, which is the subject of this paper. These obligations are mostly personal payment obligations, and related to the basic rights or freedoms of the parties, so in principle shall not be forced to fulfill. Moreover, civil liability for property liability, will not be imposed on the person, so with personal attributes or personal trust attributes of the behavior of the debt, usually are not suitable for compulsory performance, the duty of loyalty is no exception.
Secondly, the duty of fidelity agreed upon in the loyalty agreement, because it involves inaction and extremely sensitive sexual privacy, so it is even more naturally impossible to enforce the possibility of fulfillment. There is no possibility of preventing the breach of such obligations in advance, unless the obligor is subject to round-the-clock monitoring. The obligation of spouses to refrain from extramarital sex based on the fidelity agreement can only be consciously observed by the perpetrator, and there is no other way to guarantee its fulfillment. As scholars have said, the marriage law, even though the hope that both spouses care for each other loyalty, but for the marriage of fidelity can only be realized naturally, can not maintain the marriage and the legal means of “forced” husband and wife to be loyal to each other.
3.2 The effect of liquidated damages and discretionary reduction
3.2.1 The agreement on liquidated damages is valid in principle
Although the obligation of fidelity is not enforceable, but the relevant liquidated damages provisions can be effective. The “main purpose of liquidated damages is not to hold the other party liable for breach of contract, but to exert pressure on the other party to comply with the contract by an amount higher than the expected damages”. Therefore, as long as the agreed obligation is legal and valid, the parties may in principle agree on the legal consequences of breaching it. Of course, a distinction should be made here between two types of obligations that are not enforceable. One type is where enforcement would conflict with other norms concerning the fundamental rights and freedoms of the individual, such as the obligation to marry in the case of a marriage contract. In many countries (e.g. Germany, Switzerland, etc.), the marriage contract is binding on the parties and they are obliged to get married; however, on the one hand, this obligation is not enforceable, and on the other hand, liquidated damages clauses for the fulfillment of this obligation are invalid, otherwise it would be tantamount to forcing others to get married, thus violating the principle of freedom of marriage. Another category of obligations that are not enforceable, the reason why they are not enforceable is not because the fulfillment of such obligations of a personal nature will infringe on the fundamental rights and freedoms of the perpetrator, but for the consideration that civil liability cannot be imposed on the person. But the party's breach of contract should be evaluated negatively, so the parties are allowed to set liquidated damages for this type of obligation, such as the entrusted contract of the trustee's obligation to perform the affairs of the contract, the contract of the contractor's obligation to process, as well as this paper involves the duty of loyalty agreement of the duty of loyalty and so on.
The categorization of the above two kinds of obligations actually corresponds to the categorization of identity acts. Pure identity agreements include formation-type identity agreements and performance-type identity agreements. In the former, liquidated damages clauses should not be recognized as valid in order to avoid forcing the parties to establish or dissolve a certain status relationship, thus infringing upon the fundamental rights and freedoms of human beings. In the latter case, recognizing the validity of liquidated damages clauses is not only harmless to the fundamental rights and freedoms of human beings, but also strengthens the performance of contractual obligations.
Loyalty agreements are typical performance-based identity agreements, in which liquidated damages clauses are in fact a kind of pre-agreement between the parties on the damages for breach of contract, and have the same functions as liquidated damages in general - urging and oppressing functions. Such an agreement is intended to enable the matters arranged in the status agreement to be realized by legal means, and is essentially an expression of the freedom of choice of the modern affirmative family members in terms of their lifestyles. Accordingly, liquidated damages clauses in loyalty agreements should be permitted by law. For creditors, the advantage of liquidated damages clauses is that, in the event of a debtor's default, the creditor does not have to prove each and every one of the damages suffered by the creditor, which is particularly common in the case of an obligation not to act. In addition, liquidated damages also serve the function of making intangible damages compensable. Violation of the damage caused by the loyalty agreement is mainly moral damage, the parties to determine the amount of compensation in the form of liquidated damages, is conducive to determine the amount of damages after the breach of contract. It must be emphasized that, breach of contract liability can not claim moral damage this view was once in our country trial practice is quite popular. However, logically speaking, what kind of damage should have what kind of damages. Due to the non-performance of the debt, the creditor may produce both property damage, may also lead to moral damage. In addition, the law does not prohibit the pre-agreement of moral damages, “there is no law that prohibits it”. The liquidated damages clause in the loyalty agreement as a pre-agreement on moral damages is fully established in theoretical logic.In practical terms, it is difficult, but not entirely unquantifiable, to estimate with precision the amount of moral damage caused by a breach of the duty of fidelity by the other spouse. Quantification can be referred to a lot of factors, such as the length of marriage, each (especially the woman) to pay more or less.
Most of our judicial practice also recognizes the validity of liquidated damages in fidelity agreements. In a case, the court held that “the breach of contract in the fidelity agreement, the essence of the defendant as the party at fault to the plaintiff's damages guarantee, the agreement does not violate the prohibition of the law, and does not harm other people and the public good, should be supported by the law.
3.2.2 Discretionary rule of liquidated damages
In order to achieve a deterrent effect, the parties will generally agree on a higher amount of liquidated damages in the loyalty agreement. It is doubtful that if the obligor does violate the loyalty agreement, does it mean that he/she has to bear the corresponding liability for liquidated damages according to the agreement? In other words, can the obligor claim an appropriate reduction of the excessive amount of liquidated damages?
Some scholars believe that “in view of the nature of the status relationship of such agreements, it is impossible to judge whether the ‘liquidated damages’ are lower or excessively higher than the ‘damages caused’, and cannot refer to the application of the liquidated damages adjustment rule, so as to avoid excessive judicial review and interference in family autonomy”. intervene in family autonomy”. This view is not correct. Instead of undermining family autonomy, appropriate judicial intervention in cases where liquidated damages are agreed to be too high can help to achieve substantive justice in the family. “On the one hand, agreeing on liquidated damages is a mechanism for the parties to plan in advance for the consequences of impediments to the performance of the contract on their own, and it is a requirement of private law autonomy to respect its validity; but, on the other hand, predetermination dictates that in agreeing on liquidated damages, the debtor is faced with nothing more than a non-reality of the burden of payment.” When a couple enters into a fidelity agreement and agrees to a high liquidated damages, both parties are confident that they will comply with the agreement as a means of avoiding harsh liquidated damages liability, but this is often not the case. At this point, it would be too unfavorable to hold the breaching party liable for the amount of liquidated damages agreed upon at the time of contracting. Moreover, the essence of the liquidated damages in the loyalty agreement is a kind of moral damages, so in determining the amount of its reference to the application of the supreme people's court on the determination of civil infringement of moral damages liability (hereinafter referred to as the “judicial interpretation of moral damages”), the provisions of article 5, rather than no way to judge the amount of liquidated damages is too high or too low.
Therefore, in the event that the amount of liquidated damages in a loyalty agreement is too high, the provisions of the Contract Section on the discretionary reduction of liquidated damages shall be applied in accordance with Article 464, paragraph 2, and Article 585, paragraph 2, of the Civil Code. Such treatment is conducive to achieving a balance of interests between the spouses. After all, one spouse violates the loyalty agreement, although objectively cause the other party's damage, but if thus bear hundreds of thousands or even millions of monetary liability, not too harsh on him or her. “Civil law is the art of balance, protecting the injured party without making one party a slave to the other's property.”
Factors to be considered in the discretionary reduction should include the following: (1) the degree of breach of contract (degree of fault), such as a single breach of contract or multiple breaches of contract, whether it is purely “physical dereliction of duty” (e.g., visiting prostitutes or “one-night stand” with strangers, etc.) or whether it is a combination of both Extra-marital affairs, whether it is an occasional breach of contract or the existence of cohabitation with others outside of marriage, or even bigamy, whether there is a child born out of wedlock, etc.; (2) the degree of fault of the contractual partner, whether there is abuse, abandonment and other faults listed in Article 1091 of the Civil Code, whether there is a violation of the duty of fidelity at the same time, etc.; (3) the property status of the two parties, their incomes, the family's economic situation, the amount of liquidated damages for families of different economic levels, and the amount of liquidated damages for families of different economic levels. Different economic level of the family on the amount of liquidated damages of the high and low degree of feeling there is a huge difference.
Judicial practice is not lacking in the application of liquidated damages discretionary rules. For example, in a case, the court held that, “considering that Yuan Mou is a truck driver, income is general, so the agreement agreed 500,000 yuan of compensation does not accord with its actual economic situation, obviously high, obviously unfair, so the court according to Yuan Mou's economic income, daily consumption level and affordability, combined with the local standard of living, Yuan Mou discretionary payment of compensation of 50,000 yuan to Zheng Mou “. In another case, the court similarly held that “the amount of moral damages agreed upon by the plaintiff and the defendant was too high, and should be determined at the discretion of the parties in accordance with the principle of determining the amount of moral damages in tort, in conjunction with the agreement of both parties and the local socio-economic level, and the other party's ability to bear the burden of the damages”.
3.2.3 Relationship between liquidated damages for fidelity agreements and divorce damages
Generally speaking, the triggers for breach of fidelity agreements are broader than those for divorce damages, but the two are in competition where the breaching party is bigamous or cohabiting with another person. A breach of the duty of fidelity between spouses, even in the form of mental infidelity, is sufficient to trigger liquidated damages for a fidelity agreement. However, the trigger for divorce damages is more stringent. According to Article 1091 of the Civil Code, only if the perpetrator violates the duty of fidelity to the extent of bigamy or cohabitation with another person, the other party who is not at fault can claim for divorce damages. In other words, in the case of bigamy or cohabitation with another person, which is a serious violation of the duty of fidelity, the liquidated damages for breach of fidelity agreement and the damages for divorce will be competing.
In this case, the breach of fidelity agreement and divorce damages should be exercised by the contracting party, otherwise, the contracting party will be awarded the same damages repeatedly. Divorce damages require the right to claim a party must not be at fault, coupled with the loyalty agreement has a punitive function, so compared to the divorce damages, the defending party claiming breach of fidelity agreement is more likely to be compensated for the higher amount of compensation.
3.3 statutory liability
Conclude a loyalty agreement between the parties will usually violate the consequences of the duty of loyalty agreement, but as mentioned above, if the parties on the violation of the legal consequences of the loyalty agreement is too harsh, such as the agreement of the defaulting party “out of the house”, the agreement will be contrary to the public order and morals and is invalid. In this case, in the absence of an agreement between the parties on the consequences of breach of contract, the rule of statutory damages shall apply. In the agreement of liquidated damages is too high and must be reduced, the high part of the liquidated damages in fact also belongs to the illegal or contrary to the custom and invalid, valid only for the retained, the amount of discretionary reduction. Thus, there is no difference between the two situations, except that in the case of “clean break” clauses, such clauses, as a whole, cannot be divided into amounts, and can only be invalidated as a whole in favor of applying the statutory rule of damages for breach of contract. Nonetheless, there are differences between statutory liquidated damages and divorce damages in cases where the consequences of breach of contract are too harsh to be effective. First of all, the trigger is different. Divorce damages are triggered by the law, even the Civil Code Article 1091, the new paragraph 5 of the bottom of the provisions, but also limited to a party with a major fault. On the other hand, the trigger for statutory damages for breach of fidelity agreement is more lenient and broader in scope, as long as both parties have a contract in the first place. Secondly, divorce damages are subject to the condition that both spouses are divorced, whereas statutory damages for breach of a fidelity agreement are not.
Breach of fidelity agreement of the legal liability for damages, mainly embodied in moral damages. Whether moral damages can be claimed based on breach of contract has been controversial. However, as of now, the abiding party can be based on the specific circumstances of the breach of contract for moral damages, has been the consensus of most scholars. Moreover, China's legislation for breach of contract liability can claim moral damages, has changed the original ambiguous attitude, clearly declare the affirmative position (article 996 of the civil code). It can be seen, moral damages and breach of contract liability is no longer natural isolation, specific breach of contract occasions can be given to the injured party with moral damages. Loyalty agreement, as a status agreement, is a typical contract pursuing non-property interests. Loyalty agreement to abide by the duty of fidelity between husband and wife as the main payment content of the agreement, which itself is to satisfy a spiritual interests. Therefore, the defending party to a loyalty agreement should be allowed to claim moral damages from the breaching party.
The proper basis of claim for such statutory liability for damages would be articles 577 and 584 of the Civil Code. Theoretically, there are two ways of constructing the basis of claim: first, Article 996 and Article 1001 of the Civil Code, the former allows for moral damages in the event of breach of contract violating the right to personality, and the latter stipulates that the protection of the right to identity shall be based on the protection of the right to personality, i.e., the contracting party may claim for moral damages in the event that the right of the spouse, which requires the husband and the wife to be faithful to each other, is infringed on due to the breach of contract of the other party. Secondly, Article 577 and Article 584 of the Civil Code directly refer to the purely moral damages arising from the breach of contract as “l(fā)oss”, as the “l(fā)oss” in Article 584 should originally include moral damages from the perspective of the meaning of the term. The difference is this:Moral damages under the latter approach do not require the infringement of a certain right as a connecting point, which is more conducive to the functioning of the loyalty agreement. Moreover, the moral damage in the former approach is still essentially a tort (belonging to the relative right of the spouse's right because of the other party's breach of contract and infringement of the right), is inherent interest infringement caused by the moral damage; The latter approach is more pure, can be understood as the performance of the interests of the damage caused by the moral damage. Moreover, from the point of view of legal methodology, the former approach is more tortuous, while the latter approach is more fluent. In the former approach, the technique of applying the law is “reference application”, and regarding its nature, there are views that the essence is the analogical application of the law, while other views believe that it is between the interpretation of the law and the continuation of the law, but in any case, it has been clearly separated from the scope of legal interpretation. The latter approach is still within the realm of legal interpretation. Based on the application of the law to follow the “l(fā)egal interpretation - law within the law of the continuation of the law - beyond the law of the law of the continuation of the law” of the progressive rule, the latter way is more convenient.
With regard to the amount of compensation, China usually adopts a statutory approach to the amount of compensation for moral damages, i.e., the law sets an amount within which the judge will exercise discretion on a case-by-case basis. In determining the specific amount of compensation, can refer to the application of the “moral damage compensation judicial interpretation” of the relevant provisions of article 5, the amount can be slightly higher than the infringement of moral damages, in order to realize the parties envisage the deterrent and preventive effect.
3.4 Legitimacy of Marital Compensation
One spouse violates the loyalty agreement, can the other spouse claim liquidated damages or damages without divorce? There are different voices in the academic community on this issue. The affirmative position is that the contractual party should be allowed to request the breaching party to bear the responsibility of breach of contract in the case of not claiming divorce. Negative position that, during the marriage relationship, one of the spouses to the other party's violation of the fidelity agreement for the reason of litigation, and do not request a divorce, is essentially still belong to the family disputes. Moreover, “marital compensation”, even if mediation, will cause serious damage to the couple's feelings, the continuation of the couple's future life together is very unfavorable, may be for the end of the marriage to lay a hidden danger.
This paper is in favor of the affirmative position, for the following reasons: first of all, the abiding party based on the breach of fidelity agreement for damages claim has independence. On the one hand, one spouse's breach of the duty of fidelity, regardless of whether or not there is a divorce, has caused actual damage to the other spouse, and the law has a duty to remedy the damage, and should not be bounded by whether or not there is a dissolution of the marriage. Moreover, “not all families and couples are willing to take the costly means of divorce to recover their losses, and some aggrieved parties are not willing to give up their current marriages on the basis of ethical concepts or consideration of issues such as child rearing”. Failure to recognize the separate justiciability of a fidelity agreement is to tie it to a petition for divorce. The result would be that the contracting party would either have to file for divorce against his or her will in order to claim his or her rights under the fidelity agreement or would have no choice but to give up claiming his or her rights in order to avoid a divorce, thus allowing the unfaithfulness of the party at fault to be condoned. On the other hand, damages based on the breach of a fidelity agreement, unlike divorce damages, should not require divorce. According to Article 1091 of the Civil Code and Article 87(3) of the Interpretation of the Supreme People's Court on the Application of the Marriage and Family Section of the Civil Code of the People's Republic of China, divorce damages can only be claimed at the time of divorce, and should meet certain requirements. The reason for this is that “the nature of divorce damages is to compensate for the damage caused to the other party by the spouse's faulty behavior leading to the divorce and thus the dissolution of the marriage contract”. However, the damages claimed by the contracting party based on the breach of the fidelity agreement are intended to compensate for the damage caused by the breaching party due to the violation of the duty of fidelity, which is fundamentally different from the damages for divorce, and therefore should not be subject to the limitation of whether or not there is a divorce.
Secondly, the recognition of the right of the contractual partner to “marital compensation” may not necessarily undermine the harmony and stability of the marriage. “The ultimate purpose of a claim for the performance of a fidelity agreement within marriage is still to save the marriage and to maintain the marital relationship.” If this were not the case, the parties could have simply claimed divorce. Moreover, “family peace comes from respect for the rights of the other party and is created by husband and wife together, not by sacrificing the rights of one party that should be protected in exchange for the peace of the family.” By way of marital breach of contract, not only to some extent can soothe the contract party suffered emotional damage, but also to the behavior of the party in breach of certain constraints and warnings, compared to the face of one party repeatedly violates the obligations of fidelity, the other party's grudges and helpless, “marital compensation” is more conducive to the health of the marriage and the long term.
Finally, the matrimonial property regime does not create an obstacle for the contracting party to claim marital damages. If the spouses have agreed to separate property regimes, there is no obstacle to the contracting party claiming marital damages and being able to obtain satisfaction. It is questionable, in real life, most couples still use the marriage of common property system, the traditional property system model, this property system model will hinder the parties to claim “marital compensation”? Judicial practice, there are views that, under the common property system, marital compensation is like the money from the left pocket to the right pocket, and no practical significance. In this paper, this view is not correct. On the one hand, whether to claim the right and whether the right can actually be enforced is a different level. On the other hand, under the joint property system, such compensation also has a material basis. If the breaching party has personal property, the compensation should be paid out of his or her personal property. If there is no personal property, then his or her share of the joint property may be the basis for compensation.
4. Conclusion
The duty of fidelity is both a moral and a legal obligation. Violation of the statutory duty of fidelity will constitute a marital fault, so that the “cheating party” in the divorce property division may suffer some adverse consequences. Loyalty agreement is the contractualization of the statutory duty of loyalty, the purpose is to make the specific performance of the statutory duty of loyalty and its consequences can be detailed and concrete. In terms of nature, it is different from the traditional identity agreement that creates, changes or annihilates the identity rights (obligations), but a new type of identity agreement, that is, the fulfillment of identity obligations on how to fulfill the identity agreement. As an identity agreement, its legal application may be based on the provisions of the General Provisions Section and the Marriage and Family Section of the Civil Code, and the provisions of the Contract Section of the Civil Code may be applied by reference.
Since a fidelity agreement is a restatement and refinement of the legal duty of fidelity, it is neither illegal nor contrary to custom, and its validity should be recognized in principle. Of course, if about the fulfillment of the duty of loyalty, or about the consequences of breach of contract, the agreement of loyalty directly conflicts with the mandatory provisions of law, or the agreement is too harsh so as to form for the contracting party's personal freedom of the overly restrictive, then such loyalty agreement is of course invalid.
Loyalty agreement as a kind of identity agreement which is valid in principle, can produce binding force between the parties. Loyalty agreement of the obligation of fidelity because of the personal attributes, can not apply for compulsory performance. However, if the parties breach the agreement, they shall bear the adverse consequences. Loyalty agreement on the consequences of breach of contract, in the nature of the liquidated damages, such liquidated damages should be valid in principle, but if the liquidated damages are too high, the party in breach of contract may request the court to reduce. Loyalty agreement of liquidated damages is essentially the amount of moral damages predetermined, therefore, determine whether the liquidated damages of the loyalty agreement is too high, not the amount of liquidated damages and the actual loss of comparison, but with the amount of moral damages in China on the relevant provisions of the amount of comparison. But if the parties on the violation of the legal consequences of the loyalty agreement is too harsh, such as the agreement of the defaulting party “out of the house”, will be against public order and morals and is invalid. At this point, the parties can be regarded as no agreement on the consequences of breach of contract, in the event of a party breach of contract, the rules of legal damages should be applied, the abiding party can be claimed from the breach of contract for moral damages. China's civil code for breach of contract liability can claim moral damages has a number of provisions, therefore, this kind of moral damages as the content of the breach of contract liability no longer have the legal interpretation of the insurmountable obstacles. Against the background of article 464, paragraph 2, of the Civil Code, which for the first time implements the principle of autonomy in the field of identity law, loyalty agreements should be explicitly recognized by legislators and the judiciary in China.