Research On The Condition Of Marriage Ban

Since China implemented its reform and opening up policies, thirty years haspassed. Along with the rapid development of economy in China, people’s thinkinghas undergone tremendous changes; the freedom of marriage has rooted deeply inpeople’s mind. The modern marriage law is paying more attention to the principle ofautonomy, respecting everyone’s freedom and rights. However, there is no freedomthat is not relative or limited. Mild intervention of the state is necessary for marriageand family’s stability and harmoniousness. If civil self-governance is the opposite ofpublic order and good custom, the state intervention will appear, and it will be theregulator of marriage and family. The purpose of state legislation is protectingpeople’s right and freedom, but any freedom without order is not true. All in all, thatfreedom and order are dispensable in modern society, but the freedom is fundamental,laws aim to assure people’s liberty.The principle of matrimonial freedom is a basic principle of the Chinesemarriage law, and it is from the voluntary principle of the Civil Law. The essence ofthe voluntary principle can be explained that a civil subject perform one civilbehavior independently without any intervention of countries and individuals. Thefreedom of marriage means that marital parties can decide their own marriage by law,without any force and illegal intervention of others. The principle of matrimonialfreedom is from the voluntary principle of the Civil Law which means autonomy inprivate law, and the autonomy in private law is the heart and soul of the Civil Law.While marriage law contains the principle and soul of the Civil Law, it’sdifferent from the Civil Law. Firstly, the difference in the degree of autonomy of thewill. Property relations and personal relations are adjusted by arbitrary norms in civillaw. The generation, alteration and disappearance of most civil legal relationship canbe decided by parties on themselves. But in marriage law,“Autonomy of Will”islimited, most of the rules in marriage law are compulsory norm, the content of rights and obligations are decided beforehand by law, parties can only decide somethingsuch as the conclusion and dissolution of marriage by themselves and without anyconditions attached, so the degree of autonomy in marriage law is lower than that incivil law. Secondly, the difference in status of ethics. Ethics are only establishedbroadly in civil law. In judicial practice, the judge brings to trial mostly at thediscretion of the court. But there are many ethics in the rule of marriage law, andsome rules reflect the demands of ethics. In the field of marriage and family, lawraises a higher demand in ethics than in civil law. So ethics is the most properties ofmarriage law.This thesis attempts to analyze the rule of forbidding marriage in domestic law.According to Marriage Law of the People’s Republic of China (hereinafter referred toas Marriage Law), any of the following circumstances the prohibition of marriage:First, immediate blood and collateral blood relatives within three generations. Second,suffering from a medical that should not be married to the disease. The provisionworked on the improvement of population quality. Along with the social development,the citizen’s views on marriage and love have become more and more advanced, theprovision in Marriage Law have become an obstacle to the development of the society.All the rules appear to be too general, difficult to operate, and very backward. Thescope of disease in which people cannot marriage is overbroad, that is opposite to thefreedom of marriage. Our Marriage Law is incomplete, we don’t know whether bloodrelations in fiction of law and kinsmen by affinity can get married. This paper drawslessons from other country’s law and our ancient laws, I will give advice on thecondition of Marriage Ban in the mortal view. Then, our marriage law will be morecivilized and international.There are rules about Marriage Ban in Marriage law, because physiology andethics is very important to a country. But ethics is mutative, it must adapt to modernpeople’s mind, habits and customs, and life style. According to me, with the advanceof the human civilization and medical standard, our Marriage Law should keep pacewith times, and narrow the scope of disease in which people cannot get married. Inorder to maintain the ethic order of family, ensure the freedom of marriage，linealrelative by marriage should not get married, and so is blood relations in fiction of law.