| How to deal with all kinds of defects in the marriage registration? Both the 1980 <Marriage Law> and the current <Marriage Law> didn't provided clearly,and this is also one shortcoming about the current <Marriage Law> after amendment.Because there is a lack of validity provision of marriage registration flaws and it led to the disagreements in the judicial practice in different regions and made the same case a opposite judgment.Multiple occurred of this situation is not only harmful to the legitimate rights and interests of marriage parties,but to the credibility and authority of judicial institutions.The trial practice and the constant adjustment of legislation all proved,that positive response to the question of the effectiveness of registration defective marriage is urgent,also the key to solve the problem,the necessary preparation for the codification of civil law in the new period,the perfection of marriage and family law and the urgent need for the protection of the rights and interests of parties.The judiciary and many experts and scholars have recognized the existence of the problem,and actively explore the solution path.The first article of <Marriage Law Judicial Interpretation(Three)> has regulated,that the registration defective marriage is not invalid or revocable,it shall be subject to administrative proceedings.But this approach did not solve with the registration defective marriage directly,further caused many scholars to dispute the correctness of administrative proceedings.In our country,some scholars have proposed to solve the problem with the way of fault doctrine and factual marriage.The author analyzes one after another and thinks these methods have their own advantages,but there are still some problems to be improved.At present,referencing the relevant legislation in other foreign countries and China's Hong Kong,Macao,Taiwan area,adjustment of the validity of flawed marriage is all one of the important content of the marriage and family law.But the effect of this marriage in various countries and regions are not the same: foreign countries like Germany,Japan,France,Italy,Switzerland think this flawed marriage is effective;China's Hong Kong,Macao,Taiwan area think this flawed marriage is invalid but take exception provisions.First of all,the similar to the above two kinds of legislation can proved that,no matter what kind of legislative mode,adjustment to violation of marriage procedure is essential content of marriage and family law and loss in this respect in China does need to be perfected urgently;secondly,comparing the two kinds of legislative mode's differences,the former actually take effective pattern and the latter take invalid pattern but take exception provisions.The author thinks that the legislation of registration defects in our country should take effective pattern,namely,the validity of marriage is not invalid because of flaws in the marriage registration procedure,except that it has not been registered from the beginning.On the one hand,the pattern is more useful to relief the rights of parties and more fully reflect the principle of fairness and the vulnerable groups interests;on the other hand the pattern can combine with China's existing legislation better.At the same time,in order to understand the people's views on the registration defective marriage in China,the author distributed 100 questionnaires in Yubei District,Chongqing and Dongzhou District,Liaoning,and integrate the collected data.On the basis of the analysis of the current scholars' solutions in China,referring to the relevant legislative experience and the opinions of the people of other countries,the author suggests that our country should adopt the effective model to construct the system of registration defective marriage in our country,divided into four aspects: the applicable premise,the trial procedure,the legal effect and the legal consequence,and put forward three specific legislative proposals. |
PDF Full Text Request