The Validity And Remedy Of The Marriage Which Registration Has Procedural Defects

The "Marriage Law" which was revised in 2001 has established the invalid marriage system by three provisions, and then the invalid marriage system has been refined and improved by the judicial explanations and normative documents which were enacted in a few years later. However, the problems of defects in marriage registration which are also the part of the marriage law aspects, especially the disputes of the procedural defects in marriage registration have emerged in large numbers, can not be properly solved because of the absence of legislation in the long time and the confusion of applying the law.The marriage which registration has procedural defects means the marriage that the registration of the parties violates the procedures which are prescribed by law, in the narrow sense of the marriage which registration has procedural defects, is the marriage which procedural defects exist in the marriage registration, the main cases include that the marriage registration is not applied by the party himself or herself, or the party submits defective marriage registration materials, or the marriage registration office exercises the powers but oversteps its authorities. Some of the marriage registration defects due to the fault of the parties, and some are because of the marriage registration office's fault, others are the result of the parties and the marriage registration office's faults.Before the year of 2003, China's laws and regulations had specific provisions on the marriage which the party cheats in the marriage registration. But during the years after2003 to 2011 when the “The Third Judicial Explanation of China's Marriage Law” was published, the marriage legislation on the marriage which marriage registration has procedural defects was blank in our country. The Article 1 of “The Third Judicial Explanation of China's Marriage Law” points out that these disputes should be solvedthrough administrative reconsideration or administrative proceedings, not the other remedies. But in the judicial practice, if the parties concerned want to solve the issue of the marriage which registration has procedural defects through administrative reconsideration or administrative proceedings, they will be faced with a large number of obstacles.Faced with the problems that the validity of the marriage is difficult to determine,and it's difficult to protect rights of the party, the scholars in our country have carried out extensive research from different views. Most scholars believe that marriage registration is the formed element of the marriage. Completing the marriage registration or not determines the marriage is formed or not, and on the basis of this, scholars offer the proposal of the litigation for the establishment of marriage. In other areas of law in the world, the provisions of the marriage formed elements are different, but the main countries and the regions all have specific legal provisions on the validity and remedy of the marriage.By the analysis and discussion on the validity and remedy of the marriage which registration has procedural defects, this thesis is aimed at providing some useful references to the parties in order to solve this kind of disputes and help them.