Private Autonomy In Marriage

Marriage is a kind of relationship between the individuals.In modern, marriage was considered as a relationship regulated by private law,hence, it is a private law relation.Undoubtedly,yet the nation and society would like to interrupt the marriage for special purpose involved with their benefits since they are the stakeholders of marriage.Surely,ways to regulate marriage are divergent in different time.Balancing the benefits and circumscribing the edge of the rights between the nation and the individual should be considered as long as they are involved in same interests,which play key function for protecting the individual's benefits from interruption of the nation.The purpose of this thesis is to circumscribe the boundary between the government and the individual in marriage field,and to avoid interrupt the individual's private area too much arbitrarily.In particular,this thesis talks about the scope of Private Law Autonomy and decisions made by individuals from the marriage and divorce.The topics will include the requirements of marriage,the same-sex marriage,the function of contract in marriage,requirements of divorce,and divorce effect.Through talking about those topics,one hand,existing theories related to this thesis will be talked about in depth;on the other hand,it will contribute to the improvement of law.One of ideas of this thesis thinks that releasing marriage,including the acceptation of same-sex marriage,is in accordance with the value of modern legal system.One hand,it will be conformed with modern society's views to the nature and functions of marriage;on the other hand,it is also in accordance with the legislation associated with the individual's benefits in social security and tax.Contrarily,although the trend of legislation worldwide is to release divorce,the point in here is that government should regulate divorce more strictly than before.To some extent,this idea derived from the point of releasing marriage.Surely,regulating divorce is totally different from the institution that forbids the divorce,which was enacted hundred years in west society.The reason to regulate divorce is to make sure that the minor's benefits and those of people whose economic station is not very good could be protected reasonably.The basic judge of modern government in the field of relationship between minors and parent who are divorced is to stress the importance of minor's benefits which is divergent from the institution emphasized the role of father completely.Nowadays, the relationship between minors and parent who are divorced regulated by the positive law instead of private law.This thesis has five parts.The preface and the first article constitute the first part which aims to talk about cardinal concept and basic theory construction,at the same time,the meaning to choose this thesis and comparative legal collection are also introduced.The second part talks mainly about private autonomy in marriage,which focuses on the formal requirements and essential requirements of marriage;in addition,the same-sex marriage is one of most important topic in here.In this part,the writer thinks that it is necessary for the people involved marriage to have more freedom;specially,individual's rights are limited by resorting to limit people who are same sex get married.The third part talks about the private autonomy in divorce.By resorting to comparative method and historical method,this thesis reviews the history of divorce in western society and ancient Chinese society.The functions of fault and covenant in divorce are discussed in depth.The thesis holds an opinion that although releasing divorce is kind of symbol of trend of modern legislation,sometimes,it goes too far;hence,rational regulation is still necessary.The fourth sect discusses the private autonomy in the divorce effect. The article thinks that modern countries have eliminated parent's power during they rise minority since they are the stakeholders of minority. However,modern countries would like to give couple some room to express their own desire to arrange their property. The last part is the conclusion,it is kind of reasonable for the country to interrupt the stuff relating to marriage and divorce since the country is the stakeholder of marriage;but,the extent of interference should change according divergent social circumstance.The writer thinks that people should enjoy more freedom in marriage,and the country should regulate divorce more strictly in rational track.