The Study On The Same-sex Marriage System

In human history, the homosexual phenomenon objectively exist in ancient and modern times, in China and foreign countries. Homosexuality is not reduced because of a severe negative social attitudes and not increased due to tolerant social norms, their situation are also different in different countries at different periods. In China, homosexuality has achieved decriminalization and non-pathological disease. But homosexuals still suffer from discrimination. They always conceal their sexual identity to family and friends. More and more homosexuals are forced to get married with heterosexuals on the traditional pressure, which Led to some family and social tragedy. The reason is that there is no same-sex marriage in China. They can not enjoy the same rights as heterosexuals.Compared with China, to protect the interests of homosexual marriage has become a hot topic in West. So far, many countries or regions in the word have successively passed legislation to acknowledge legal recognition of same-sex marriage in different models. This is a tremendous progress in human marriage institution development. Recently, the legislation pattern of same-sex marriage abroad mainly has four kinds: First, the Same-sex marriage model, this model will be the institution of marriage equality for homosexuality and heterosexuality, they can enjoy fully equal marriage rights; Second, the Civil partnership model, this model defined the combination of same-sex as a civil partnership not as a marital relationship and formulate laws to adjust the relationship of combination between the same-sex, giving same-sex couples some but not all of the rights and interests of spouse; Third, the Parte Civil de Solidarit model, the model through the contract which contracted by two heterosexual or homosexual adult natural person in order to live together constrain each other’s rights and obligations and the law is only to do some special requirements; Fourth, the De Facto partnership model, this mode gives same-sex cohabitation couples and heterosexual couples equal protection in fact, not to have register as a protective element. The four kinds of patterns have respective features, they are on behalf of the social civilization and the progress of the rule of law. It is a critical step for the realization of equal protection of homosexual and heterosexual.Because the legislative protection for homosexual rights in China is almost a blank, some scholars put forward the legislation of same-sex marriage. The representative views as following:one is to modify the "marriage law" or enact "same-sex marriage law", giving homosexuals and heterosexuals equal marriage rights; the other one is to formulate of cohabitation law, including the same-sex cohabitants and heterosexual cohabitation. Although these two kinds of patterns have great significance to protect the homosexual rights, but not to consider our existent social system. Homosexuals are in a difficult situation, China should consider protecting the dignity of personality and the marriage freedom of homosexuality, but must be combined with China’s conditions. Through the comparative analysis of foreign legislation patterns, China can learn from the Civil partnership model, constructing the same-sex marriage system that accord with the situation of our country. And give this special group a part of marriage rights from the law aspects, gradually eliminating discrimination against homosexuality, realizing the equal protection of homosexuals and heterosexuals.