Study On The Invalid Marriage System And The Voidable Marriage System In China

Marriage is not only a social phenomenon, but also a legal phenomenon. If a marriage to be accepted and subsisting, it shall not only accord with the desire of social ethics and moral, but also be evaluated and bound by the law. The invalid marriage system and the voidable marriage system have been established in the world, to deal with the marriages lacking in legal elements of marriage.The current marriage law of china added the invalid marriage system and the voidable marriage system in 2001. It fills up the blank of the organic law of our country, and provides a uniform legal basis for dealing with the marriages lacking in legal elements of marriage. However, there are some shortcomings of current rules of the invalid marriage system and the voidable marriage system in China, and much argument about the study and improvement of above two legal systems.Based on the current marriage law of China and related judicial interpretations, according to basic theory of civil law, referencing the legislations of other countries, combined with multiple academic viewpoints, this thesis attempts to clarify the relevant concepts, comb the historical evolution and analyze the inadequacies of existing systems, in order to put forward some individual views and proposals for studying and improving the invalid marriage system and the voidable marriage system of China.This thesis consists of three parts.Chapter one solves the problem appearing in studies on the invalid marriage system and the voidable marriage system in China, that there are confusions of some concepts. With basic theory of civil law, this chapter points up the distinction of the establishment, validity and legality of marriage, and demonstrates that the illegal marriage is unequaled to the invalid marriage and the voidable marriage, in order to discern the situation of using concepts in current studies. Then, this chapter makes a decision that the concept using in this thesis is"the invalid marriage system and the voidable marriage system". In addition, this chapter elucidates that the de facto marriage should not be classified as a statutory circumstance of the invalid marriage or the voidable marriage,with discriminating among the invalid marriage, the voidable marriage and the de facto marriage.Chapter two discusses the history of the invalid marriage system and the voidable marriage system of our country. At first, the historical evolution of the invalid marriage system and the voidable marriage system of our country is zoned for three periods: the gestation period, the period of formation, and the period of development. On that basis, this thesis summarizes and analyses the expressions of the invalid marriage system and the voidable marriage system at various times of the history of china. Then, this chapter discusses the significance of combing the historical evolution of the invalid marriage system and the voidable marriage system of our country. The significance is to make a clear understanding of the of the invalid marriage system and the voidable marriage system in china, and to offer reference to the study on current rules of the invalid marriage system and the voidable marriage system of our country and the thoughts on the necessity of establishing the above systems.Chapter three is about the shortcomings of current rules of the invalid marriage system and the voidable marriage system of our country and how to improve them. This chapter involves three aspects including the statutory circumstances, the legal procedures and the legal consequences and relief system of the invalid marriage system and the voidable marriage system. The author chooses a few important issues from above three aspects, elaborates these issues individually, points out the shortcomings of current rules of the invalid marriage system and the voidable marriage system of our country, and makes some proposals for improving and perfecting the invalid marriage system and the voidable marriage system of China.On the statutory circumstances of the invalid marriage system and the voidable marriage system, the deficiency in current legal rules of our country is very clear. It causes the law can not to incarnate the value orientation of modern marriage law, because these rules lay particular stress on cracking down the illegal marriages and lack of the respect and protection of the legal right of marriage parties. Chapter three adjusts the statutory circumstances of the invalid marriage again, retains"bigamous marriage"and"marriage between relatives"as the statutory circumstances of the invalid marriage, and changes"marriage with medical illness that should not be married and has not cured"and"below the legal age for marriage"to be the statutory circumstances of the voidable marriage.Chapter three also proposes to extend the scope of the statutory circumstances of the voidable marriage. Except for adding two statutory circumstances such as"marriage with medical illness that should not be married and has not cured"and "below the legal age for marriage", the other proposal is to set up"the expression of marriage is not true"as a statutory circumstance of the voidable marriage. The description of"the expression of marriage is not true"is recapitulative. This statutory circumstance might be embodied in"coerced marriage","marriage by deception","sham marriage","marriage with gross misunderstanding", and"marriage by taking advantage of others'precarious position". It can protect the free will of marriage of the parties in a wider scope. At last of the first part of chapter three, it makes the conclusion that"bigamous marriage"and"marriage between relatives"are the statutory circumstances of the invalid marriage, and the statutory circumstances of the voidable marriage must include"marriage with medical illness that should not be married and has not cured","below the legal age for marriage"and"the expression of marriage is not true".The second part of chapter three discusses the legal proceeding of the invalid marriage and the voidable marriage of our country, mainly addressing three problems. Firstly, it has not be stipulated clearly in current marriage law of china that whether it need a declaration of marriage null and void by a particular organ. From the point of the publicity effect of marriage registration, analyzing the maladies of make the invalid marriage certainly null and void without any declaration, this thesis concludes that the invalid marriage must be declared null and void by a particular organ. Secondly, according to the deferent extent of administrative power and jurisdiction, this thesis expounds that the people court is the exclusive organ which has the power to declare a marriage null or not, and the same power of the marriage registration authority ought to be cancelled. Lastly, on the basis of affirming the rules of current marriage law, according to the statutory circumstances of the invalid marriage and the voidable marriage which be changed in the first part of chapter three, this thesis properly adjusts the sphere of the right owners who have the right to apply for declare marriage null or void, and suggests adding the guardian of juveniles as the right owners in the situation of"below the legal age for marriage".What be discussed in the third part of chapter three is about the legal consequences of the invalid marriage and the voidable marriage of our country. In the current rules of marriage law of china, any marriage which has been declared invalid or canceled shall be deemed to be invalid from the beginning. It seems correspond to the civil law theory which says an invalid or canceled civil act is not legally binding ad initio, but it neglects the particularity of marriage as a kind of status acts. Referencing the rules of marriage laws of other countries, this thesis concludes the legal consequence of the voidable marriage shall be not same as that of the invalid marriage. Any voidable marriage is null from it be canceled, and this invalidation should not have retroactive effect.How to identify the child when a marriage is declared invalid or canceled, there is no clear exposition in current rules of marriage law of our country. Children are innocent, and should not be concerned in parents'faults. For the sake of protecting the best interests of the child, this thesis suggests that the child who born in the invalid marriage and the voidable marriage should be deemed to be legitimate child not illegitimate child, in order to give this kind of children their proper legal status.In the last of the third part of chapter three, this thesis indicates the problem that the protection of the parties in good faith is not included in the invalid marriage system and the voidable marriage system of china. Referencing the relief system of divorce, this thesis suggests setting up the relief system of the invalid marriage system and the voidable marriage system in our marriage law, which based on sorting the parties in good faith from the malicious parties. This relief system should comprise three parts: economical recompense, economical aid and compensation for damage. This thesis expects to make up for the material damage and moral damage of the parties in good faith in the maximum extent.