A Study On The Effect Of Serious Illness On The Determination Of The Validity Of The Act Of Contracting Marriage

The provisions of Article 1053 of the Civil Code establish a revocable system for untruthful notification of major diseases.However,the provisions of this article are very brief,which brings operational difficulties to the judicial application.Although some research has been conducted in the academic field,it is mostly theoretical interpretation,and the judicial practice since the implementation of this provision is less studied.In view of this,on the basis of sorting out the legal system before and after the implementation of the Civil Code regarding the effect of major diseases on the act of marriage contracting,and taking the judicial judgment on the application of Article 1053 as a perspective,this topic summarizes the experience and problems in the judicial application of the effect of major diseases on the act of marriage contracting before and after the implementation of the Civil Code,and proposes the correct determination of the effect of major diseases on the act of marriage contracting.This article summarizes the experience and problems in judicial application in resolving disputes between the parties,and proposes measures to correctly determine the effect of major diseases on the validity of marriage contracting acts,in order to benefit the accurate application of this provision in judicial practice.Except for the introduction and concluding remarks,this paper is divided into four main parts.The first part compares the changes in the legal system of China in respect of the effect of major diseases on the determination of the validity of the act of contracting marriage.The general trend of the legal system from the establishment of New China to the implementation of the Civil Code and after the implementation of the Civil Code is that the legal content has evolved from a strict prohibition of marriage to a liberal revocable marriage clause,and the legislative change is due to the respect for the marital autonomy of the parties and the protection of the patients’ right to marry.At the same time,the shortcomings of Article 1053 of the Civil Code are pointed out,such as the lack of provisions on the circumstances of cure and the lack of specificity in the obligation to inform.It also clarifies that in the changes of the legal system,the factors affecting the determination of the validity of the act of contracting marriage by major diseases mainly include: the scope of the disease,the time of cure,the obligation to inform,etc.The second part sorts out the judicial practice on the influence of major diseases on the determination of the validity of marriage contracting acts in China.On the basis of a brief description of the search of judicial judgments,from 861 judicial judgments of civil cases,the focus of controversy of the cases is sorted out,and the main factors influencing the effect of major diseases on the act of marriage contracting before and after the implementation of the Civil Code are summarized: the scope of major diseases,the timeline of diseases,the obligation to truthfully inform and the allocation of the burden of proof.All four factors have an impact on the validity of marriage before and after the implementation of the Civil Code,but the degree of their impact varies,and the specific problems of the influencing factors are pointed out.The third part summarizes the legal systems of typical countries in the extraterritorial world in terms of the influence of major diseases on the determination of the validity of the act of contracting a marriage.It summarizes the provisions of typical countries in different legal systems on the determination of the validity of marriage contracted by patients with major diseases,and summarizes the inspiration of four factors that influence the determination of the validity of marriage contracted by major diseases in typical overseas countries: major diseases should include mental diseases,untreated infectious diseases and genetic diseases that seriously affect fertility;the time of cure of diseases can be considered before and after marriage,as appropriate;the obligation to inform the truth can be distinguished between the cure of diseases before and after marriage The duty of truthful notification can be distinguished from the different degrees of impact of diseases on post-marital life;the allocation of the burden of proof can be based on the legislative experience of Japan,and the introduction of the doctrine of authority to request the court to investigate the evidence that is difficult to prove,which is conducive to the better discovery of facts in the case and the maintenance of substantive fairness and justice.The fourth part proposes measures to correctly identify the effect of major diseases on the validity of marriage contracting acts.The proposal is three-fold: first,to add a provision on the scope of major diseases,time line,obligation to inform and burden of proof in the judicial interpretation of the Civil Code;second,to strengthen the construction of case guidance,and establish a case guidance system by increasing publicity and the number of cases published,so as to improve the efficiency of judicial trials;third,to improve the rate of independent marriage examination by the parties,by establishing a confidential system of marriage examination,simplifying the procedures of marriage examination and increasing publicity and education to gradually deepen people’s understanding of marriage testing.