An Analysis Of Merital Action From The Perspective Of Legal Action

In civil law, whether the marriage and family law should be in civil code or not, whether the action of should be covered by the Juristic act theory, it has been the subject of legal debate. To solve this problem, we must start from Juristic act theory. If the civil law could be regard as a hall filled with deep thinking and powerful life breath, the Juristic act theory should be the most solid pillar and the brightest lighting system. Though professionals have studied the Juristic act theory thoroughly, they overlook the care and contrast of Juristic act theory on marital action more or less. As a result, the author of this essay delves into Juristic act to judge marital action as a kind of legal act or highlight the feature of marital action that release it from legal act.The thesis is composed of five parts.The first part mainly talks about the definition and source of jurisprudence of legal action and marital action. Legal action, which derives from party autonomy, is the action with theory of expressing established as the core. Yet in Chinese system of legal action, the theory of party autonomy not only fails in complete expression, but also contains contradiction. As for marital action, dispute on whether Marriage Law shall be separated from Civil Code has existed for long. Marital action, due to its convergence sharing with legal action in Law of Property, deserves necessary regulation in general principles of Civil Code. Meanwhile, owing to the particularity of marital action, special regulation shall be accepted in law when the prominence of general principles of Civil Code is granted.Under the General Principles of Civil Code of the People’s Republic of China, the essence of civil legal action contains the following:party autonomy shall be truly expressed, the actor shall have relevant capability for civil conduct, regulations in law shall not be violated, and public interest shall not be harmed. Accordingly, features of common civil law act and marital act will be further analyzed from the aspects of capability of civil conduct, party autonomy expression and social public interest respectively in the second, third and forth parts of the thesis. It can be concluded that, due to the particularity of marital act in comparison to common civil law act, special regulations in Marriage Law shall be accepted in making judgment on marital act capacity, flaws in party autonomy and violation against public interest.The fifth part is devoted to further elaboration of similarity and difference of marital action and legal action, mainly in three comparatively special systems concerning legal action, namely agency system, system with additional conditions and time limits, and system of limitation. As the controversy over codifying the marriage and family law in to civil code blown up in civil law circles, internal relation between legal action and marital action is a field that should be paid more attention to. In The sight of theory origin and concept definition of marital action and legal action, this essay affirms marital action as one of legal action at firs. But considering its specific characteristics in declaration of intention, capability of civil law conduct, and public interest, marital action could not be covered by common rules of legal action. In a sum, the lead of civil code to marital action ought to be agreed in law. On the other hand, the law has to admit some specific rules of marital action that different from general legal action. In this way, the relation between legal action and marital action could be clarified.