夫妻间公开婚外情的隐私侵权法律问题研究

Study on the Privacy Infringement of Public Extramarital Affairs between Spouses

摘要: 对于夫妻一方公开配偶婚外情的隐私权纠纷，当前司法实践中存在认为婚外情不受隐私权保护以及公开隐私的侵权行为可因忠实义务而豁免的问题。这些问题的产生，源于婚外情不是隐私或婚外情违背道德不受隐私权保护的传统观念以及法官对履行忠实义务与隐私权保护间关系的误解。履行忠实义务不能对抗隐私权。法官豁免公开隐私的侵权行为不仅没有法律依据，而且不利于隐私权人的权利保护和无过错方配偶权益的救济。公开婚外情是对不忠实配偶的报复行为，还可能造成第三人隐私受侵害的额外后果。《民法典》已经将隐私权作为一项具体人格权，司法机关理应更加重视夫妻间隐私权保护，摒除道德观念对公开隐私侵权认定的影响，注重夫妻间隐私权纠纷中实体正义的实现。

Abstract: For the privacy dispute of one spouse disclosing the extramarital affair of his or her spouse, there is a problem in current judicial practice that the extramarital affair is not protected by the right to privacy and the tort of disclosing privacy can be exempted by the duty of fidelity. These problems arise from the traditional notion that extramarital affairs are not private or that extramarital affairs are unethical and not protected by the right to privacy, and from judges’ misunderstanding of the relationship between the duty of fidelity and the protection of privacy. Fulfillment of the duty of fidelity cannot be against the right to privacy. The judge’s exemption from the tort of disclosure of privacy is not only without legal basis but also detrimental to the protection of the rights of the privacy rights holder, the relief of the rights and interests of the non-faulting spouse and the maintenance of the spousal relationship. Disclosing the privacy of an extramarital affair is an act of retaliation against an unfaithful spouse and may have the additional consequence of violating the privacy of a third person. The Civil Code has made the right to privacy a specific personality right, and the judiciary should pay more attention to the protection of privacy between spouses, eliminate the influence of moral concepts on the determination of public privacy infringement, and focus on the realization of substantive justice in privacy disputes between spouses.