The invalid marriage system established by China's new marriage law is a progress. However, in some specific circumstances, the legitimate rights and interests of innocent vulnerable parties can not be fully protected. The legislation of China is very different from that of other countries, and it will inevitably conflict with the laws of other countries. Therefore, we should think about this problem.

Keywords: invalid marriage system from the beginning, invalid marriage can be revoked

First, the establishment of invalid marriage system in China

The Marriage Law promulgated by China 1980 does not clearly stipulate the existence of "invalid marriage", but it can be inferred that cohabitation without a marriage certificate belongs to invalid marriage. Without legal protection. Since then, 1994 "Regulations on the Administration of Marriage Registration" clearly put forward the concept of "invalid marriage" for the first time. Article 24 stipulates that "if citizens who have not reached the legal age for marriage live together in the name of husband and wife, or if citizens who meet the conditions for marriage live together in the name of husband and wife without marriage registration, the marriage is invalid and not protected by law". Since then, China's Marriage Law, which was revised on April 28th, 20001year, formally stipulated the invalid marriage system. Article 10 stipulates that "in any of the following circumstances, the marriage is invalid (1) and bigamy; (2) there is a kinship that prohibits marriage; (3) Before marriage, he suffered from a disease that is medically considered to be improper marriage, and he has not been cured after marriage; (four) under the legal age of marriage. " Article 4 1: "If a marriage is coerced, the coerced party may request the marriage registration authority or the people's court to cancel the marriage." In addition, 16 of the 34 articles in the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China (I), which came into effect on February 7, 200016, is related to the invalidity of marriage.

From the latter two, we can see that the marriage law of our country has systematically stipulated the invalid marriage system. It is helpful for the judge to have clear rules to follow when making a judgment, for the parties to infer their own litigation results at an early stage with reference to the law, for adjusting the marriage order, and for maintaining legal dignity by judging illegal marriages to be invalid. This is undoubtedly a great progress. In addition, article 12 of the Marriage Law also stipulates that "the property acquired during cohabitation shall be judged by the people's court in accordance with the principle of taking care of the innocent party." It embodies the protection of the innocent and the weak. This is actually the implementation of the principle of protecting the legitimate rights and interests of women, children and the elderly. However, this principle has not been thoroughly implemented in the invalid marriage system. Under some special circumstances, according to the invalid marriage system, invalid and revoked marriages have no legal effect from the beginning, and the parties are not husband and wife, and both parties have no right to inherit each other's intestate death property according to law; One party has no obligation to support the other party who has always lived with him and accepted their marriage.

However, in real life, in several cases that are listed as invalid marriages by the new marriage law, there are phenomena such as malicious parties cheating, using and evading the responsibilities of bona fide parties by various means. In this case, there is no marriage relationship between the two parties as stipulated in the new marriage law, and the sanctions against malicious parties cannot be truly achieved. But to help the malicious party escape the responsibility of marriage. In fact, it is to let the malicious party shirk its responsibility, while the well-intentioned party is an innocent victim. At the same time, it can not protect the rights of innocent parties and vulnerable parties.

Second, the specific forms of invalid marriage stipulated in China

1, de facto marriage

Article 8 of the new Marriage Law stipulates that a marriage certificate shall be reissued, and Article 5 of the Interpretation further stipulates that "if a man fails to register his marriage according to Article 8 of the Marriage Law, lives together in the name of husband and wife, and files a lawsuit in a people's court for divorce, it shall be treated differently. (1) June 5438+0994+February1Before the promulgation and implementation of the Regulations on the Administration of Marriage Registration of the Ministry of Civil Affairs, if both men and women have met the substantive conditions for marriage, they shall be treated as de facto marriages. (two) after the promulgation and implementation of the Regulations on the Administration of Marriage Registration, the people's court informed them to re-register their marriage before accepting the case; If the marriage registration is not handled, it shall be handled as dissolution of cohabitation. " After bringing a lawsuit to the court in accordance with the Interpretation, the court shall inform it to re-register the marriage, and after the re-registration, it shall be treated as a valid marriage; If it is not reissued, it shall be treated as the dissolution of the contractual relationship, and it shall be deemed that there has never been a marriage relationship.

Article 6 of the Interpretation stipulates that "if one of the men and women who have not registered for marriage and live together in the name of husband and wife as stipulated in Article 8 of the Marriage Law dies and the other claims the right of inheritance as a spouse, it shall be handled in accordance with the principle of Article 5 of this Interpretation." Article 5: When the court told him to reissue the marriage certificate, according to the provisions of Article 8 of the Marriage Law, both men and women must go to the marriage registration machine in person to register their marriage, but because one party died, the other party could not register separately. The situation stipulated in Article 6 of the Interpretation actually goes around a big circle and is regarded as "dissolution of cohabitation". As can be seen from the above, if the factual elements of marriage are not met before 1 994 February 1 and the substantive elements of marriage are not met after February1,it will be confirmed as a valid marriage on the premise of completing the marriage registration. But on the one hand, the dispute between the two sides is so serious that it needs to be resolved by the court, which shows that the possibility of re-registration is very slim. On the other hand, there will be a marriage certificate after re-registration, which is no longer a typical de facto marriage. Therefore, China's marriage law basically does not recognize de facto marriage.

However, in real life, the phenomenon of unmarried cohabitation is on the rise, with a wide range, including both highly educated intellectuals and ordinary social youths with low academic qualifications. The social relationship formed through this social phenomenon has a direct impact on personal identity, property, children's relatives, etc., but the new marriage law has left a blank for this important social relationship.

2, consanguineous marriage

Marriage law prohibits "direct blood relatives and collateral blood relatives within three generations" from getting married, but it does not clearly distinguish between natural blood relatives without blood relationship and fictional blood relatives without blood relationship. Among the adopted sons and daughters, the children married to adoptive parents belong to fictional blood relatives without blood relationship, and there is no genetic obstacle in their marriage. If the adoption relationship is dissolved, there will be no ethical obstacles and the interests of others and society will not be harmed. Article 7 of the Marriage Law stipulates that "lineal blood relatives and collateral blood relatives within three generations are forbidden to get married." This rule prohibits marriage before marriage is established. If this marriage relationship has been established, you can apply to the court for a judgment that the marriage is invalid from the beginning on the grounds that Article 10 of this Law "the marriage with relatives who are forbidden to get married is invalid". Article 8 of the Interpretation stipulates that "if a party applies to the people's court for declaring a marriage invalid according to Article 10 of the Marriage Law, and the legally invalid marriage situation has disappeared at the time of application, the people's court will not support it." It can be seen that, as mentioned above, if the marriage relationship between the parties involved in the fictitious blood relationship formed through adoption is declared invalid by the close relatives of the parties on the grounds that the marriage relationship is forbidden in Article 10 of the Marriage Law, and both parties to the marriage no longer have kinship because of the dissolution of the adoption relationship, then according to Article 8 of the Interpretation, the court shall rule that their marriage is invalid. Similarly, in this way, the parties can get married without violating the prohibition of consanguineous marriage in Article 7 of the Marriage Law.

However, China's marriage law does not distinguish between natural blood relatives and fictional blood relatives. According to the above provisions, can relatives of natural blood relatives also dissolve their kinship in some way to make their marriage or marriage valid?

Step 3 don't agree to get married

Unmarried marriage includes fraudulent marriage, fake marriage, forced marriage, improper marriage and so on. In modern social life, there are more and more population movements. After the two parties are allowed to get married, the actual situation is often that Party A will apply for a marriage certificate from the location of the accounts of both parties because the accounts are too far apart. If Party A makes false materials, apply for a marriage certificate at the place where Party B's household registration is located. However, Party B married Party A without knowing it, and then Party A claimed that the marriage was invalid on the grounds that the materials were untrue and the two sides did not agree. This is a cheating marriage. At present, many work units give different treatment to married and unmarried people in housing allocation, and many people can enjoy housing allocation treatment under the guise of conspiring to get married. This is a fake marriage. There are threats to personal honor and property to achieve the purpose of marriage, which is forced marriage. Except for fake marriage and improper extramarital affairs, at least one party is not at fault, which is often the result of infringement, such as forced marriage and fraudulent marriage. They are usually women and are forced to perform the duties of spouses. If all these are regarded as invalid from the beginning, the essence of law cannot be embodied without protecting the spouse right that the innocent party should enjoy and the right to recover from the malicious party.

Article 10 of the Marriage Law stipulates that "underage marriage is invalid." Article 8 of the Interpretation stipulates that "if the legally invalid marriage situation has disappeared at the time of application, the people's court will not support it." Obviously, when the parties under the age of marriage or their close relatives apply to the court to declare the marriage invalid, if both parties have reached the age of marriage, their marriage is valid, and the court should not declare it invalid from the beginning. On the contrary, if one party is underage "at the time of application", the court should declare the marriage invalid from the beginning, even if the woman is pregnant or even has children and has lived together for many years. In fact, in underage marriage, if the woman is pregnant, it is a common practice all over the world to extinguish the right to apply for invalidation. The appearance of children makes it impossible for all parties to return to their original state and think that marriage never existed. This point should be carefully reflected, and it is more appropriate to eliminate it and declare it invalid with the age of marriage and pregnancy as the inducement.

4. Sick marriage

"Marriage Law" stipulates that "marriage is invalid if you suffer from diseases that are medically unsuitable for marriage before marriage and are not cured after marriage". These are mainly some intractable and hereditary diseases. Taking this situation as a condition for prohibiting marriage, its purpose is to consider the right to life and health of the next generation and their spouses and get their spouses out of trouble. But this is only from an objective point of view, without considering subjective goodwill and malicious factors. For example, there is a very strong feeling between Party A and Party B. Before getting married, Party A was found to have some diseases that medical doctors thought should not be married. However, in order to facilitate Party A's treatment and let him spend the rest of his life safely, Party B voluntarily marries Party A, takes care of Party A and voluntarily does not have children. This is extremely beneficial to A, both mentally and physically. For B, you can get happiness from your lover's care and life. On the contrary, B may feel regret and regret in his later life. This is also conducive to social stability and will not harm the interests of any third party. Another example is that A deliberately concealed his criminal facts and died after living with B for many years. According to Article 7 of the Interpretation, the subjects who have the right to apply for annulment of marriage "include the parties to the marriage and interested parties". The latter takes "a disease that is medically considered unsuitable for marriage before marriage and has not been cured after marriage" as the application reason. Therefore, in the above two cases, if a relative asks the court to decide that the marriage is not in compliance with the law on the grounds of "sick marriage", it will be invalid from the beginning. Then, B has paid a lot of efforts and property. After A's death, B can't inherit A's inheritance as a spouse, nor can B claim A's tort from a third person as a spouse.

Under the above circumstances, if he is not dead, and B is physically and mentally exhausted because of taking care of A, but needs the care of A, A can abandon him and not give treatment to B for the simple reason that their marriage is invalid and A has no legal obligation to take care of B. This is unfair and unjust from both the substantive justice of general moral jurisprudence and the spirit of protecting private rights in civil law.

If this case is not deemed invalid from the beginning, before the marriage is revoked by the court, the relationship between Party A and Party B will be regarded as the relationship of rights and obligations of husband and wife, and Party A and Party B have the obligation to support each other. B can inherit A's inheritance as a spouse. However, medically speaking, people who can't get married have the same consequences as ordinary people. If A has offspring, their offspring may bring burden and harm to society, so it is not feasible to simply agree to this marriage. Therefore, people should not get married on the premise of having children voluntarily, and a series of punishment measures have been formulated for violating this premise. It should be considered that on the basis of acknowledging the reality, the relationship between the parties before the dissolution of marriage should be regarded as the relationship of rights and obligations between ordinary marriages, so as to better protect the rights of the parties and contribute to social stability. It is conducive to the legal spirit of pursuing substantive justice and embodies fairness and justice.

5. Bigamy

Bigamy is usually regarded as a serious violation of morality and social welfare. For example, after A and B get married, A and C get married again. C will be regarded as a third party, and his marriage with A is invalid, and his rights and interests are not protected by the marriage law. A and C will even be punished by the criminal law, especially if A belongs to the wife of an active soldier. Article 258 of China's Criminal Law stipulates that "a person who has a spouse commits bigamy or marries another person knowing that he has a spouse shall be sentenced to fixed-term imprisonment of not more than two years or criminal detention." Article 256 "Whoever knowingly cohabites or marries a soldier shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention." However, if Party A deceives Party C by various means and conceals the fact that he married Party B, and Party C is in a normal mental state, unable or impossible to know the fact that Party A and Party B are married, and is convinced that their marriage with Party A is in a legal marriage state, it is obviously unfair to Party A to simply invalidate the judgment from the beginning, making life difficult for Party C and its children, and not getting compensation commensurate with Party C's obligations as a spouse. Such a law is actually a protection for infringers. Before Party C knew that his marriage with Party A was bigamy, his unilateral legal rights and obligations could not be disposed of, and he could not protect his due right to recover from the other party. As mentioned above, the marriage law does not recognize de facto marriage, so it is not bigamy for a spouse to live with others in the name of husband and wife. This is a typical case of avoiding bigamy by expression.

Here we should reflect on the subject of applying for invalid marriage. Article 7 and Article 10 of the Interpretation stipulate the scope of applicants except those who coerce extramarital parties and interested parties. In a coerced marriage, the known applicant should extend to the close relatives of the coerced party in addition to the coerced party. Article 7 It is too narrow to limit "interested parties" to the close relatives of one party or both parties. Because in reality, there may be obvious malicious use of marriage to avoid debt. For example, A owes B a lot of debts, but A is unwilling to repay them, so A is not old enough to get married or has a forbidden marriage relationship with C to get a marriage certificate in some way. However, he did not engage in real marriage life, so that he would take the appropriate opportunity to declare the marriage invalid on the grounds of being underage and prohibiting marriage. Because the explanation only stipulates that the parties to the marriage and their close relatives have the right to apply to the court to declare the marriage invalid, Party B has no right to apply. Therefore, after secretly disposing of the children's own property, C can negotiate with A to leave written evidence to prove that both parties agree to regard their own property as husband and wife's property. In this way, Party B gets half of Party A's property because of marriage, but Party A's debt repayment is limited to Party A's share of the marital property, which greatly reduces Party A's debt repayment ability, thus damaging Party B's creditor's rights. Therefore, in some special circumstances, if the parties obviously have the purpose of maliciously evading their obligations by using the form of marriage, the scope of interpretation of "interested parties" who have the right to apply for the cancellation of marriage should be expanded.

Third, the theoretical thinking of invalid marriage system.

In civil law, illegal civil acts are divided into invalid, modifiable and revocable. Invalid legal consequences are invalid from the beginning and restored to the original state; The reasons for revocation include fraud, coercion, taking advantage of others' danger, major misunderstanding and obviously unfair. The revocation right holder can change, and the revocation right holder can choose freely whether to request revocation or change of a revocable civil act. But it is impossible to restore the identity facts of both parties to the marriage relationship and the vital interests of the children. Therefore, the Marriage Law classifies several invalid marriages into the category of ab initio invalidity, which can't meet the needs of social reality well and can't fully reflect social justice and humanistic care. Only a few cases that seriously violate social welfare should be defined as invalid marriage from the beginning. The other is classified as revocable and non-retroactive, that is, the relationship between the two parties before the marriage becomes invalid is regarded as the relationship between husband and wife in ordinary marriage.

Marriage law is a private law and an important part of civil law. Private law is a law aimed at adjusting the basic life relationship between private individuals and protecting the civil rights and interests of the parties. This is a favorable law and an equal law. Therefore, the basic value orientation of marriage law should be to protect private rights and establish right of relatives's proper position in the civil rights system. Its main purpose is not to punish, but to solve disputes, distinguish responsibilities, protect the interests of innocent parties and vulnerable parties, and adjust social order. In addition, the prescribed sanctions should also protect the rights and interests of innocent and vulnerable parties. Just as Ling Montesquieu thinks that "the purpose of writing this book is to prove this sentence, moderate tolerance and spirit are the spirit of legislators ..." (1) It is necessary to ban something that is not a bad thing under the pretext of some imaginary perfection. Therefore, legislators should pay equal attention to protection and sanctions, and sanctions should serve protection. (3) in the invalid marriage system, we should try to narrow the scope of invalid marriage from the beginning, but in the revocable marriage. We should also aim at realizing the spirit of substantive justice of the law, emphasizing the protection of the innocent party who has fulfilled the obligations of the spouse in good faith, the rights that the disadvantaged party should enjoy as a spouse and the right to recover from the malicious party, which will make the revocable result gradually converge to the divorce result, and British scholars even made a judgment that the invalid marriage system has gradually disappeared.

Is it okay?