On The Evolution And Legislative Perfection Of Marriage Ban Under The Principle Of Freedom Of Marriage

The principle of marital freedom is the first and foremost one in the Marriage Law of our country, and the foundation of modern marriage system. The right for marital freedom is not a theory or slogan far from reality. On the contrary, it is a kind of right to select a life partner freely, which is tightly relative to us. In the modern society, almost everyone is facing marriage issues, as well as the issues on implementing the right for marital freedom. While the majority is naturally enjoying marital freedom, a fractional number of people refrained from marital freedom due to the lack of so-called primary factors for marriage have been or are experiencing tremendous sorrows, confronting with unfair treatment. The importance of marital freedom and its existing problems in the real life have triggered the author to explore. The thesis doesn't touch on every topic about marital freedom, but analyzes the freedom of matrimony—one of the contents in marital freedom - and the meaning and essence of primary factors for marriage ban starting from the changes in the primary factors for marriage since the founding of the Republic of China; and further establishes the relationship between them in different time according to the changes in both of them in the Marriage Law of our country. Finally the thesis draws a legal proposal to improve the right for freedom of matrimony for public. The author suggests that protecting the right of people who are banned from marriage for freedom of matrimony in the Marriage Law should be implemented by legislation to gradually tighten the scope for application of primary factors for marriage ban in the Marriage Law. It is proper and in line with the tides of development to do so. "In order" refers to tightening the scope for application of primary factors for marriage ban in the Marriage Law of our country actively and gradually and keeping away from excluding it without conditions, taking into account the social development conditions. Gradually tightening the scope for application of primary factors for marriage ban in the Marriage Law of our country meets the demand of time for protecting the right for freedom of matrimony for special group, as well as the demand for multiple values of society. Furthermore, the traditional orientation of general values and the acceptance by the society are considered, which justifies its feasibility in reality. The thesis contains three parts in addition to the introduction and the conclusion.First of all, the relationship between the freedom of matrimony and the primary factors for marriage ban is analyzed in the first part of thesis. The freedom of matrimony is an important part of the principle of marital freedom, and protected by laws such as Constitution Law and Marriage Law. It is the basic right for every citizen. The author indicated that the freedom of matrimony for public is the requirements for market economy and democratic politics, and determined by the essence of marriage to protect the justification of marriage. It is also a fundamental principle constantly highlighted in the Marriage Law of our country, but the implementation of it lies in the current historical conditions. The primary factors for marriage ban are exclusive stipulation that banned a marriage because of the lack of overall primary factors for marriage. The primary factors for marriage ban try to secure the implementation of the right for the freedom of matrimony for public in a negative manner, and play a role in maintaining the social ethics. The existence of the primary factors for marriage ban is exactly an exhibition for the authority to restrict the right for the freedom of matrimony for general public in order to maintain the social order, which reflects the intense relationship between freedom and order.The second part of the thesis is in connection with the previous provisions of the Marriage Law, in which the marriage ban was amended and improved with the method of historical criticism and analysis. It is about the background, free and the marriage ban in previous "Marriage Law". In "Marriage Law" of 1950, although in a certain range banned citizens to marry, there is major historical significance in marriage liberty. but in 1950 "marriage law" , the marriage ban still has limitations: freedom of marriage as principle is not complete, Attention to public interests, ignoring individual freedom of marriage; Pay more attention to protecting the interests of soldiers while neglect of liberty of marry women. In 1980, the marriage ban was amended, which prohibit the marriage within the lineal relatives and relatives within three generations of blood, prohibit one who had leprosy without cure or other disease that should not be married. The marriage law of 1980, the limitations of the marriage ban is mainly embodied in the law: excessive strengthened legal to social benefits and social order, which caused the background of civil rights and freedom. The local laws and regulations excessively restrict citizens' freedom of marriage, which is not consistent with the spirit of the constitution and the regulation principles. In 2001, "the marriage law" is on the basis of further perfecting the marriage ban comparing 1980 "marriage law", which was modified with certain diseases of the marriage ban, established the invalid marriage institution. In this section, the final quarter from marriage ban in marriage law: the marriage ban should modify with gradual time change, change of function of marriage affect the change of marriage ban, and to avoid lagging and strive to prospective. The marriage ban of the "marriage law" ,in which security does not reach the designated position to personal freedom of marriage, ignoring freedom of the minority rights. Freedom and rights of individuals are insufficient. In the revision and perfection of "the Marriage law", learning from the experience of history, timely reflection, adjusting the marriage ban, modifying the marriage ban in order to make marriage principle practically.In the third part of the thesis, the author puts forward to the legislative proposals to protect the right for freedom of marriage and improvement of marriage ban of a special group in our country. First of all, it defines the "special groups" with special meaning. Then a detailed description is made about the protection of the special group's freedom of the marriage. Maintaining special group's freedom of marriage is the important content of the country under the rule of law, the major measures to construct the harmonious society, the important content respecting human rights, the concrete manifestation of the justice principle. For these reasons, the author pointed out, the present marriage law in legislation and orderly narrows the scope of forbidden marriage elements is appropriate, and comply with the development trend of The Times. Specific steps as follows, firstly, the principle of marriage ban lineal should maintain, which is the ethical principles in the law. Secondly, prohibiting marrying within three generations relatives, except one or both infertile and one or both give up birth, could marry again. Thirdly, that man who has disease could not marry, unless if they give up right of bearing children, they could marry, if his disease is still not healed, unfavorable also identified as invalid marriage. Finally, on gay marriage, based on the historical and realistic reason, the marriage law does not fully give homosexual marriage enough space in short-term, but also we cannot ignore even deprived of gay marriage. We, when possible, can allow gay couples in equal and voluntary basis to establish the common life, for the purpose of the agreement. In order to maintain the freedom of marriage of the special group, meet their desire to live together, care for the benefits of society as a whole, and also have no harm to the traditional morality, be propitious to social harmony.