The Identification Of Bigamy Crime From The Perspective Of Cross Between Criminal And Civilian

Marriage is the basis of family harmony and social stability,"monogamy" is the sign of human society to civilization.Bigamy has caused great threat and destruction to monogamy.First of all,bigamy is a civil violation.The second paragraph of Article 1042 of the Civil Code stipulates: "Bigamy is prohibited.Cohabitation with other persons is prohibited." Secondly,bigamy is a criminal offense.Article 258 of the Criminal Law clearly stipulates that "a bigamy with a spouse,or a marriage with another person knowing that he has a spouse,shall be sentenced to fixed-term imprisonment of not more than two years or criminal detention".Despite the existence of relevant legal provisions and judicial interpretation,bigamy is still in the trend of high occurrence in reality,and the judicial weakening phenomenon exists.The different provisions of the criminal law and civil law on fact marriage,and the unclear concepts of "having a spouse","marriage" and "cohabitation in the name of husband and wife" have brought difficulties to judicial practice.First of all,criminal law and civil law have their own legislative purpose and normative structure,which is beyond doubt.It is also undeniable that the development of the legal system has changed from "integration of all laws and ignorance of the punishment of the people" to "division of labor of departments and their respective duties" and then to "integration and mutual influence of laws".Under the background of "great integration",all kinds of cases in judicial practice are complicated.How to effectively solve and deal with them? The theoretical circle will focus on the intersection of the criminal and the people.Most scholars focus on the selection of procedures,but ignore the substantive aspect.The selection of procedures is essentially to solve the substantive problems and serve.In the substantive aspect,the problem of the cross between the criminal and the people is mainly reflected in the corresponding provisions of criminal law and civil law on a certain legal fact,and how to explain the problem when there is a disagreement.The intersection of substantive law can be divided into several types: concept intersection,illegality judgment intersection and legal norm intersection.Secondly,it is necessary to clarify the relationship between criminal law and civil law and the difference between criminal illegality and general illegality to discuss bigamy from the perspective of cross between criminal and people.It should be admitted that criminal law is both subordinate and independent,and the independent status of criminal law cannot be ignored.Bigamy,literally,refers to the coincidence of two marriages.The concepts of "having a spouse" and "marriage" in bigamy are the essential elements of the crime.Among them,"having a spouse" corresponds to the previous marriage in the bigamy crime,and "married" corresponds to the last marriage in the bigamy crime.The identification and analysis of the two marriages according to the sequence can make the identification of bigamy more clear.Finally,to deal with the problem of cross between criminal and civil,we should follow the principle of separation of effectiveness between criminal and civil and the principle of unity of legal order.We should recognize that criminal law and civil law have their own independent value structure.It is one-sided to mechanically equate the concept of marriage in criminal law with the provisions in civil law,thus holding that the provisions on fact marriage in criminal law and civil law contradict each other.For the determination of bigamy,the most important is the interpretation of the existing laws and relevant provisions.It should be guided by the modesty of criminal law to limit the interpretation of "having spouse" in the crime of bigamy,that is,"having spouse" only refers to the legal marital relationship.Based on the provisions of the civil law,the "marriage" in the crime of bigamy is enlarged,that is,"marriage" refers to the establishment of marriage relationship.Taking the provisions of civil law as the basis for defining the scope of the concept of bigamy in criminal law is not to shackle the criminal law.To interpret the concept of criminal law and the provisions of civil law differently is not to violate the unity of legal order,but to reflect the function of protecting law and give play to its independent evaluation.As for fact marriage,as an objective phenomenon,it cannot be regarded as no longer existing because of the negation of its effect by civil law.fact marriage has the essence of marriage and is the target of criminal law.Therefore,there is no contradiction between the civil "divorce without marriage" and the criminal "marriage can be remarried".