| The enactment of the Civil Code marks the formal return of marriage law to the "framework" of traditional civil law.Although the Marriage and Family section of the Civil Code has made many adjustments to the specific rules compared to the Marriage Law,the treatment of illegal marriages remains the same.However,in dealing with illegal marriages,it still continues the "dual model" of void marriage system and annulable marriage system.From the perspective of the worldwide legislative trend,the function of the annulment system is becoming weaker and weaker,and the voidable marriage system has become the main institutional rule for dealing with illegal marriages in various countries.The Civil Code of China has reduced the grounds of void marriage and expanded the grounds of voidable marriage compared with the Marriage Law,which seems to be in line with such legislative trend.In this regard,the research value of the annulable marriage system is highlighted and should be paid attention to.When examining the voidable marriage system in China’s Civil Code,the outstanding problems lie in three areas: first,the ambiguity of the relationship between the voidable marriage system and the revocable legal act system;second,the application of the revocable provisions of major diseases;and third,the application of the provisions of coercive marriage.In the first issue,since the act of contracting marriage is classified as an act of kinship status in its legal nature.An act of kinship is a legal act.In contrast to the general property legal act,it has the characteristics of"limited content","strict formality","irrational purpose" and "stability of effect".Stability" characteristics.Therefore,in order to take into account the systemic nature of the general civil legal system and the special nature of the kinship status,the application of the revocable legal system of the general legal system to the voidable marriage system shall be based on the criteria of whether the application is contrary to the characteristics of the act of contracting a marriage or whether it is contrary to the"social propriety".The Marriage and Family section of the Civil Code specifies only two legal grounds for annulment,namely,coercion and notification prior to marriage due to serious illness.Among them,pre-marriage notification of serious illness is only a specific case of fraudulent marriage.The rule of manifest injustice does not apply to the act of contracting a marriage,which is not fair or unfair.Therefore,it is necessary to examine whether the provisions of fraud and material misunderstanding(mistake)are applicable to the voidable marriage system.Fraudulent acts or material misunderstandings involving the "essence of marriage" in the act of contracting a marriage are known in doctrine as "fraudulent marriages" and "wrongful marriages".In the first place,fraudulent marriages are widespread in China’s judicial practice,and in practice there are many situations similar to the provisions of Article 1053 of the Civil Code,which also have a significant impact on the parties’ willingness to marry,and it is not reasonable to set up a single provision of annulment for major diseases.On the other hand,although both the annulment system and the divorce system can achieve the dissolution of marriage,parties seeking relief through the divorce system will face high litigation costs and risks.Therefore,in terms of interpretation,it should be recognized that the provisions of the General Provisions of the Civil Code on fraud in general can be applied to the act of contracting marriage,so that the provision of Article 1053 on the revocability of serious illness does not exclude other types of fraudulent marriages,but is a "duplicative provision".However,the fraud provision of Article 148 should be interpreted in a different way,as fraudulent marriages are limited to cases where there is a material breach of the "essence of marriage".In practice,in addition to concealing a serious illness prior to marriage,concealing multiple "felony" convictions,pregnancy,sexual orientation,and alcohol,gambling,and drug habits involves a material breach of the "essence of marriage.Also,fraudulent marriages are not limited to the parties to a marriage;fraudulent marriages by third parties can also lead to annulment.However,annulment is only possible if the parties to the marriage,as the recipient of the intent,are "aware" of the fact of fraud by a third party.Second,in terms of wrongful marriages,most countries in comparative law recognize that wrongful marriages can lead to annulment,although the circumstances in which a wrongful marriage can be annulled are limited to varying degrees.Erroneous marriages can be divided into errors of subjective identity and errors of personal nature.It should be considered that the provisions of the General Provisions of the Civil Code on material misunderstanding(error)can also be applied to the act of contracting a marriage.This is because a wrongful marriage is not,as foreseen by German law,a remedy for the parties to a marriage through the provision that a fraudulent marriage is voidable.At the same time,there is still a need to remedy errors of a personal nature of the parties to the marriage.However,in addition to the requirement of "materiality of the error",the negative requirement of "failure to exercise reasonable care" must not be triggered by the parties to the marriage as ideologues."abstract negligence".In the case of a wrongful marriage,the marriage is irrevocable because the ideologue "failed to exercise reasonable care" in the case of a mistake regarding the identity of the subject and a mistake regarding the physical health of the parties to the marriage.In the case of persistent crimes and vices of the parties to the marriage,and in the case of errors in sexual orientation,the marriage may be annulled.Also,as for the period of annulment,the provisions of Article 152(1)(a),(3)and(2)of the Civil Code on the extinction of the right of annulment(period of annulment)shall also apply to fraudulent and wrongful marriages.That is,the author of a fraudulent marriage must exercise the right of annulment within one year from the date he or she knew or should have known of the fraud.In the case of a wrongful marriage,the right of annulment must be exercised within ninety(90)days from the date the person knew or should have known of the cause of annulment.The right of annulment must also be exercised within five years from the date of the act of contracting the marriage.The limitation of the period of annulment will motivate the ideator to exercise the right to annul the marriage as soon as possible,thus avoiding a long period of uncertainty about the marital status of both parties.In the second issue,the first question is the definition of the concept of "serious illness".In practice,there are five categories of major diseases: mental diseases,sexual and reproductive diseases,infectious diseases,genetic diseases and other diseases.The specific scope should be: mental illnesses include severe mental retardation(idiocy),moderate mental retardation(dementia),congenital mild mental retardation,and heavy mental illness.Sexual and reproductive disorders include sexual incompetence and infertility.Infectious diseases can only definitively include infectious disease types in category A.All types of infectious diseases in categories B and C cannot be generalized and should be further evaluated by assessing the degree of harm,risk of transmission,and impact on marital and family life.Genetic diseases include only serious genetic diseases.Other diseases include those that are characterized by high cost of treatment and difficulty in cure.In addition,in cases where the parties to a marriage suffer from a serious disease before marriage but are cured after marriage,it is necessary to further determine whether the disease constitutes an infringement on the parties to the marriage and their relatives before it is cured,and if it causes actual damage,the parties to the marriage should be allowed to revoke it.Otherwise,the annulment should not be allowed.In the case where the parties to the marriage have been informed of the fact of the disease through other channels before the marriage.In such cases,the freedom of expression of the parties to the marriage has not been infringed,and the parties should not be allowed to annul the marriage.In terms of the burden of proof,considering that the party requesting annulment is in a disadvantageous position in terms of evidence collection,it should not be based on the traditional principle of "whoever claims,whoever proves",and the burden of proof in a lawsuit for a major illness should be reduced through the "presumption rule".The introduction of the "presumption rule" should appropriately reduce the burden of proof on the party who proves the case.The third issue is the understanding and application of the provisions of Article1052 of the Civil Code on coercive marriage,through the judicial practice in China on the coercive marriage cases can be found,the problem of our courts in the process of adjudication is that there is a significant difference in the determination of the seriousness of coercion "degree" and in the standard of proof of coercive marriage The requirements are too stringent.It should be clear that in a coercive marriage,the requirements for the "severity" of the coercion are more stringent than in a general coercion.Drawing on the experience of U.S.law,such "severity" should be limited to a specific coerced person who has "no reasonable alternative" to being coerced.In this regard,it is necessary to make specific judgments on two levels: "means of elimination" and "remedies".At the same time,in terms of the standard of proof,although the People’s Court should maintain a cautious attitude toward the proof of the fact of coercion in marriage,it is not required to meet the requirement of "beyond a reasonable doubt" in criminal proceedings.In order to avoid arbitrary decisions by judges,in addition to strict adherence to the laws of logic and rules of thumb,the "third person control model" and the improvement of the open-heart evidence system should also impose the necessary objective restrictions on judges’ free mental evidence.In addition,the interpretation of two special types of coercive marriages-thirdparty coercive marriage and suicide coercive marriage-is questionable.Among them,coercive marriage cannot be one-sidedly deduced from the textual interpretation of the Judicial Interpretation of the Marriage and Family Division of the Civil Code to exclude the conclusion of third-party coercive marriage.Duress of marriage by a third party can also lead to annulment of marriage.In terms of interpretation,it is consistent with the General Provisions,and there are no other restrictions on the annulment of marriage by an ideologue.However,in terms of legislation,it is possible to consider a "unified model" of third-party coercion and third-party fraud.That is,the fraudulent and coerced marriage counterparts can only be annulled if they have "knowledge" of the fact of fraud or coercion by the third party.As for suicide duress marriage,although judicial practice is divided,this particular type of duress marriage also meets the requirement of "severity" in duress marriage,which will make the coerced person fear and worry based on such coercive behavior,and marry him or her against the true intention.Therefore,it should be affirmed that a coercive marriage by suicide will result in the annulment of the marriage. |
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