事实婚姻认定标准初探
发布时间：2019-01-23 14:23
【摘要】：在中国人千百年来的传统观念中,一直将举行结婚仪式,视为婚姻成立不可或缺的条件。中华人民共和国成立后,国家实行单一的结婚登记制度,否定了仪式婚的法律效力。尽管登记婚已实行多年,但是长期以来,我国仍然存在相当数量的事实婚姻。事实婚姻,是指男女双方未办理结婚登记,以长久共同生活为目的,以夫妻名义共同同居生活,并且其婚姻关系具有一定公示公信力的婚姻形式。事实婚姻不仅在我国存在,在其他各国的存在也具有相当的比例。虽然对事实婚姻的规定有所不同,但是各国基本上都在调整对事实婚姻的态度,有条件地赋予事实婚姻以法律效力。根据现行法律规定,我国只对1994年2月1日之前存在的事实婚姻,进行片面的保护。这种一刀切的做法,不能保护事实婚姻当事人的合法权益,也不能切实解决事实婚姻当前的困境。本文从事实婚姻的概念和特征入手,分析了我国事实婚姻存在的状况及原因,回顾了我国事实婚姻的立法历程,并横向对比了其他国家和地区关于事实婚姻的立法,最后结合广东省近五年事实婚姻司法审判实践的分析,提出了笔者关于事实婚姻之认定标准的浅见。本文除了前言和结论之外,分为四章,全文三万余字。第一章,事实婚姻概述。本章界定了事实婚姻的概念和特征,阐述了事实婚姻的存在状况及成因,说明了事实婚姻虽欠缺了婚姻的法定形式要件,却完全符合婚姻的实质要件。所以,对于事实婚姻,应有条件地赋予其合法婚姻的效力。接着笔者对1949年以后,我国事实婚姻的立法演变进行了梳理,指出了我国现行法律对事实婚姻的规定存在的不足。第二章,其他国家和地区关于事实婚姻的比较法考察。本章对其他十个国家和地区的事实婚姻立法进行陈述,就结婚的形式要件进行横向比较,并就如何赋予事实婚姻以效力进行了一定的评析。通过比较和分析,笔者发现各国对事实婚姻的态度都比较谨慎,并朝着对事实婚姻进行承认的方向发展。这对我国完善事实婚姻认定标准,起到重要的借鉴作用。第三章,广东省近五年事实婚姻司法审判分析。本章通过广东省近五年内三个关于事实婚姻的典型案例,说明了由于事实婚姻相关法律规定存在不足,导致在司法审判中,出现一些不符合法律公平公正价值的判决,从而引出完善事实婚姻认定标准的必要性。第四章,事实婚姻的认定标准。本章先提出了事实婚姻认定标准的指导思想,继而在该思想的指导下,提出了事实婚姻认定标准的实质性要件和形式性要件上。期望笔者对本课题的研究,对依法公正公平地处理事实婚姻相关问题,完善相关立法具有一定的参考意义。
[Abstract]:In the traditional Chinese concept for thousands of years, marriage ceremony has been regarded as an indispensable condition for marriage. After the founding of the people's Republic of China, the state implemented a single marriage registration system, denying the legal effect of ritual marriage. Although registered marriage has been practiced for many years, a considerable number of de facto marriages still exist in China for a long time. De facto marriage refers to the marriage form in which both men and women have no marriage registration, live together in the name of husband and wife for a long time, and have certain public credibility in their marriage relationship. De facto marriage exists not only in China, but also in other countries. Although the regulations on de facto marriage are different, all countries are basically adjusting their attitude towards de facto marriage and giving legal effect to it conditionally. According to the current law, our country only protects the de facto marriage which existed before February 1, 1994. Such a one-size-fits-all approach cannot protect the legitimate rights and interests of the parties to a de facto marriage, nor can it effectively solve the current plight of a de facto marriage. Starting with the concept and characteristics of de facto marriage, this paper analyzes the status and causes of the existence of de facto marriage in China, reviews the legislative process of de facto marriage in China, and compares the legislation on de facto marriage in other countries and regions. Finally, based on the analysis of the judicial trial practice in Guangdong Province in the past five years, the author puts forward the author's opinion on the criterion of the recognition of the de facto marriage. In addition to the preface and conclusion, this paper is divided into four chapters, the full text of more than 30,000 words. The first chapter is an overview of de facto marriage. This chapter defines the concept and characteristics of de facto marriage, expounds the existence and causes of de facto marriage, and explains that although de facto marriage lacks the legal formal elements of marriage, it completely accords with the essential elements of marriage. Therefore, for de facto marriage, its legal marriage should be given conditional effect. Then the author combs the legislative evolution of the de facto marriage after 1949 and points out the deficiency of the current law on the de facto marriage in our country. The second chapter is about the comparative law of de facto marriage in other countries and regions. This chapter states the legislation of de facto marriage in ten other countries and regions, compares the formal elements of marriage horizontally, and evaluates how to give effect to the marriage. Through comparison and analysis, the author finds that the attitude of countries towards de facto marriage is cautious and develops towards the recognition of de facto marriage. This to our country consummates the fact marriage to identify the standard, plays the important reference function. The third chapter, the analysis of judicial trial of de facto marriage in Guangdong province in recent five years. Through three typical cases of de facto marriage in Guangdong Province in the past five years, this chapter shows that there are some judgments which do not accord with the fair and just value of the law in the judicial trial because of the insufficiency of the laws and regulations related to the de facto marriage. Thus leads to the necessity of perfecting the standard of factual marriage. The fourth chapter, the standard of determining de facto marriage. This chapter first puts forward the guiding ideology of the criterion of the recognition of de facto marriage, and then, under the guidance of the thought, puts forward the substantive and formal elements of the criterion of the cognizance of the de facto marriage. It is expected that the author's research on this subject will have some reference significance for dealing with the problems related to de facto marriage fairly and justly according to law and perfecting the relevant legislation.
【学位授予单位】：深圳大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.9
[Abstract]:In the traditional Chinese concept for thousands of years, marriage ceremony has been regarded as an indispensable condition for marriage. After the founding of the people's Republic of China, the state implemented a single marriage registration system, denying the legal effect of ritual marriage. Although registered marriage has been practiced for many years, a considerable number of de facto marriages still exist in China for a long time. De facto marriage refers to the marriage form in which both men and women have no marriage registration, live together in the name of husband and wife for a long time, and have certain public credibility in their marriage relationship. De facto marriage exists not only in China, but also in other countries. Although the regulations on de facto marriage are different, all countries are basically adjusting their attitude towards de facto marriage and giving legal effect to it conditionally. According to the current law, our country only protects the de facto marriage which existed before February 1, 1994. Such a one-size-fits-all approach cannot protect the legitimate rights and interests of the parties to a de facto marriage, nor can it effectively solve the current plight of a de facto marriage. Starting with the concept and characteristics of de facto marriage, this paper analyzes the status and causes of the existence of de facto marriage in China, reviews the legislative process of de facto marriage in China, and compares the legislation on de facto marriage in other countries and regions. Finally, based on the analysis of the judicial trial practice in Guangdong Province in the past five years, the author puts forward the author's opinion on the criterion of the recognition of the de facto marriage. In addition to the preface and conclusion, this paper is divided into four chapters, the full text of more than 30,000 words. The first chapter is an overview of de facto marriage. This chapter defines the concept and characteristics of de facto marriage, expounds the existence and causes of de facto marriage, and explains that although de facto marriage lacks the legal formal elements of marriage, it completely accords with the essential elements of marriage. Therefore, for de facto marriage, its legal marriage should be given conditional effect. Then the author combs the legislative evolution of the de facto marriage after 1949 and points out the deficiency of the current law on the de facto marriage in our country. The second chapter is about the comparative law of de facto marriage in other countries and regions. This chapter states the legislation of de facto marriage in ten other countries and regions, compares the formal elements of marriage horizontally, and evaluates how to give effect to the marriage. Through comparison and analysis, the author finds that the attitude of countries towards de facto marriage is cautious and develops towards the recognition of de facto marriage. This to our country consummates the fact marriage to identify the standard, plays the important reference function. The third chapter, the analysis of judicial trial of de facto marriage in Guangdong province in recent five years. Through three typical cases of de facto marriage in Guangdong Province in the past five years, this chapter shows that there are some judgments which do not accord with the fair and just value of the law in the judicial trial because of the insufficiency of the laws and regulations related to the de facto marriage. Thus leads to the necessity of perfecting the standard of factual marriage. The fourth chapter, the standard of determining de facto marriage. This chapter first puts forward the guiding ideology of the criterion of the recognition of de facto marriage, and then, under the guidance of the thought, puts forward the substantive and formal elements of the criterion of the cognizance of the de facto marriage. It is expected that the author's research on this subject will have some reference significance for dealing with the problems related to de facto marriage fairly and justly according to law and perfecting the relevant legislation.
【学位授予单位】：深圳大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.9
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