New Exploration in Marriage Law

Author: Ye Yingping
Publisher:
Publishing Date: 2004-04-01
Features: Since engaging in the teaching and research of family law, I have gradually developed a strong interest in it. Family law theory, the construction of family law system, and social phenomena related to marriage and family have all become objects of my concern. During the revision of the Family Law in 1980, the widespread publicity, discussion, and expert reviews across the country benefited me greatly, and it also sparked my desire to say something about the revised law. The research project on the Social Sciences Association of Hainan Province in 2001 finally helped me fulfill this wish. In human society, the sexual relationship between men and women, as well as the blood ties between relatives, are both natural and social phenomena. Since the advent of class society, marriage and family have also become legal phenomena, subject to legal regulation. Marriage is the foundation of the family, and the family is the cell of society. The stability and order of marriage and family relationships are crucial to national stability and long-term peace. Therefore, rulers throughout history and across cultures have placed great importance on family law legislation, using legal regulation to stabilize society and maintain governance. The formation and development of China's new socialist family system were gradually achieved by completely abolishing the feudal family system and continuously combating outdated traditions, concepts, and customs in the field of marriage and family. Since the founding of the People's Republic of China, our country has successively promulgated and implemented the 1950 Family Law and the 1980 Family Law. These two laws have made significant historical contributions to the establishment and development of China's socialist family system. However, due to the influence of historical and Soviet family law, these laws themselves had numerous shortcomings. Especially after the reform and opening-up and the implementation of the socialist market economy, facing the changing phenomena and concepts of marriage and family, the 1980 Family Law showed clear deficiencies in both legislative techniques and legal content. On April 28, 2001, the widely anticipated amendment to the Family Law was passed and published. The amendment addressed the new situations and issues that emerged in China's family law field after the reform and opening-up, considering the current political situation and material and economic conditions. It made necessary revisions and supplements to the original 1980 Family Law, improving the family system to some extent, enriching the content of family relationships, enhancing the applicability and operability of the law, and providing stronger legal protection for victims in the family law field. However, due to special historical reasons and the fact that the objective conditions for a comprehensive revision of the family law were not yet ripe, this amendment to the family law was merely a transitional and phased measure, aimed at addressing immediate issues and patching up loopholes. Such practical repairs and patches were necessary to maintain the continuity and stability of the existing law, but in terms of China's current family law legislation, simple repairs and patches were not enough to strengthen the legal theoretical foundation, improve legislative techniques, or make the legal content more comprehensive and suitable for practical needs. Although the revised Family Law has, to some extent, addressed the shortcomings of the 1980 Family Law, some issues remain unresolved. Moreover, the revised law has introduced new problems. For example, in terms of naming and format, the amendment failed to change the long-standing situation where the name of the Family Law did not match its actual content, failing to reflect general provisions on kinship relationships. In terms of content, it still left legislative gaps for issues of broad impact, such as common-law marriage, which are significant and focal points. In legislative techniques, some provisions remained abstract and general, making them difficult to grasp and apply. Of course, such shortcomings do not change the fundamental status of the Family Law in the field of marriage and family, nor do they affect its implementation. However, these minor flaws inevitably impact the full realization of the legal effect of the Family Law and its authority and solemnity. This book, based on the 2001 amendment to China's Family Law, conducts a realistic analysis and theoretical exploration of China's current family law from the perspectives of legal theory and social reality, striving to fulfill the responsibility of an ordinary legal professional in the scientific and perfecting of China's family law legislation. The book consists of an introduction, a postscript, and ten chapters, which are divided into four parts: General Principles, Marriage, Family Relationships, and Divorce. The introduction mainly introduces the reasons and characteristics of the 2001 Family Law amendment and provides a brief evaluation of the revision. The General Principles part consists of two chapters: an overview of China's family law legislation and the basic principles of China's family law. The former discusses the guiding ideology, scope of application, and ethnic characteristics of China's family law legislation, while the latter discusses the basic principles of China's family law and analyzes and explores some focal issues that affect the implementation of these principles. The Marriage part includes three chapters: the formation of valid marriage, invalid marriage and revocable marriage, and common-law marriage. After introducing China's current marriage system, it expresses opinions on marriage conditions, the legislative approach and content of invalid marriage, and proposes that the issue of common-law marriage should be addressed fundamentally and systemically. The Family Relationships part includes two chapters: marital relationships and parent-child relationships. After introducing the legislative changes and main content of marital and parent-child relationships, it proposes legislative suggestions for establishing the legal status of artificially conceived children and the parentage system. In the chapter on marital relationships, it specifically analyzes the legislative basis and fundamental principles that should be followed in marital relationship law and reexamines the content of marital relationships. The Divorce part consists of three chapters: an overview of the divorce system, which analyzes the historical development of the divorce system and China's guiding ideology in handling divorce issues; registration divorce and litigation divorce, which introduces the two divorce methods in China and their respective conditions and procedures, raises five questions about the current legislation regarding divorce conditions and procedures, and proposes corresponding improvements; and the legal consequences of divorce, which analyzes the legislative changes and relevant provisions regarding the legal consequences of divorce under the family law, and systematically designs and elaborates on divorce relief measures based on existing measures. The postscript incorporates the latest legislative content, analyzes the legislative changes and characteristics of the "Marriage Registration Conditions" that went into effect on October 1, 2003, and expresses concerns about some of the changes.