Research On The Problem Of Bigamic Fact Marriage

In the past few decades, along with the development of China's society, the profound change in politics, economy, culture, science and technology, Chinese ethic and morality,the way of living and the attitude toward marriage have consequently changed dramatically. In the meantime, more and more Chinese people committed bigamy, especially fact bigamy, this not only affect the harmony and stability of the families, but also trigger many civil and criminal cases, bring a series of unstable factors into the society.Among all kinds of bigamy, the most common and complicated one is fact bigamy. In fact, the perennial, plentiful, broad existence of fact marriage due to some certain causes, such as the influence of economic and culture, and some external social reasons as well as parties' personal factors. Fact marriage is not an unusual social phenomenon in old China, but because of the evasive policy and attitude the Chinese government adopted on this issue since the PRC was built, the legislation attitude of our country has been inconsistent and hesitant for a long time; that causes the issue of fact marriage, fact bigamy induced by fact bigamic marriage in particular, to become a controversial matter in China. Fact marriage and fact bigamic marriage are originally within the range of civil law, however they attract more and more criminal scholars' attention because their consanguineous connection with the related criminal term. Careful study on this issue can clarify theoretic understanding of fact bigamic marriage and bigamy, crack down on fact bigamy correctly, ensure the maintenance and development of the relationship of legal marriage in practice, and provide experiences and references for the legislation in the following years so that we can protect the monogamy more effectively in China.This thesis is divided into four parts.The first part begins with the concept and characteristic of marriage and fact marriage, make a new definition of fact bigamic marriage theoretically. It indicates that there are three kinds of fact bigamic marriage in theory: namely fact bigamic marriage comprises legal marriage before and fact marriage after; fact bigamic marriage comprises fact marriage before and legal marriage after; and fact bigamic marriage comprises two fact marriages.The second part firstly introduces the debate on the issue whether fact marriage should be deemed a crime in the circle of theoretical law study in China, three views include negative theory, affirmative theory and limited affirmative theory in brief; and then review on these three theories. The author believes affirmative theory is comparatively more reasonable, serves the aim of cracking down fact bigamy more effectively.The third part is established on the theory of criminal law, research the characteristic of bigamy on the serious social damage, the composing and deserving punishment of criminal law. It demonstrates fact bigamy can be deemed a crime and should be fought against as bigamy. Study on this issue by author, the acknowledgement of fact marriage and bigamy fact ,especially the former marriage or the former and the later marriage which is the fact marriage of bigamy fact committing bigamy is essential to crack down bigamy and disguised bigamy, also protect the rights of innocent party, maintain the monogamy in China, call for civilized and healthy social ethos and establish stable and harmonious society. It is also beneficial in light of China's reality and the respect to marriage relationship and the aim and value choice of law.The fourth part discusses the loopholes and improvement of the law and judicial explanations related with fact bigamic marriage. At first, research the loopholes of our country's law on bigamy and fact marriage. And then, make suggestions on the improvement of legislation on bigamy and fact marriage according to the author's own opinion, that is to say: specify the external necessity of bigamy by the criminal judicial explanations; affirm fact marriage is a form of marriage; unify the judicial explanations on fact bigamic marriage in the law.