Invalid Marriage System

(Digest for the Dissertation)Invalid Marriage System was originated from Rome law. In Rome law, Invalid marriage was regarded as invalidity from the beginning. Anyone was entitled at any time to claim the invalidity of the marriage. In the mid-century in Europe, Christianity church established the principle of marriage-not-divorce based on the concept that the God granted the marriage and prohibited the divorce. As a remedy to this system, revocable marriage was introduced. Invalid marriage system in Rome law and revocable marriage system in Church law are widely adopted in many countries' modern marriage and family laws, which constitute a basic remedy to illegal marriage. It is divided into four categories about the legal result of invalid marriage In many countries' modern legislation. The legal results for invalid marriage under different legislation are also different on the retrospectiveness and the result after being declared to be invalid. In the stipulation on the invalid marriage and the revocable marriage system, single system and dual-tract system also exist. Such kind of difference are the result of the different countries' politics, history,culture and legal tradition, etc. But in any case, from the viewpoint ofmodern legal value, it is inappropriate to take absolute invalidity as such extreme approach in the identity legal field. Different approaches shall be taken based on the causes, such as degrees of violations of public interests or private interests. The current Marriage Law(amendment) approved on April 28th, 2001 sets up the invalid marriage system and adopts the co-existence approach of invalid marriage system and revocable marriage and provides division for the scopes of the invalid marriage system and revocable marriage system and also provides the clear stipulations for the confirming procedures and the legal results for the invalid marriage system and revocable marriage system. The establishment of such system is a great progress in our marriage legislation. However, with the enforcement of this legal system, the defects in the legislation also appear. This may causes the difference on the understanding, and causes further chaos in the judicial operations.This dissertation tries to make comparison and research on foreign invalid marriage system in order to illustrate legal sense and value tendency on invalid marriage under our country's politics, history, culture and legal tradition and raises our understanding and proposal onthe too-narrow scope on our countries' legislation on invalid marriage,especially the marriage lacking the parties' will, such as the marriage by transaction and cheat .which have not been stipulated in the law. Unclear division of the invalid marriage and revocable marriage and the incomplete stipulations on the results of the invalid marriage and revocable marriage, I think ,under our situation, it is reasonable to provides dual tract system for invalid marriage, ie, invalid marriage and revocable marriage. The marriage severely violating the public interests shall be declared to be invalid upon a party's application or the state's positive interference. however, the marriage slightly violating a party's will shall not be interfered by other people or the state and shall be only withdrawn upon application by a party, under this rule it is further necessary to make clear about the division on the invalid marriage and revocable marriage and , from the point of rational, the causes for invalid and revocable marriage and make clear about invalid or revocable stipulations on invalid marriage as a result of transaction or cheat which have clearly been prohibited in the Marriage Law and provides further stipulations for the liability undertaking as a result of the revoking of the marriage.