How to determine bigamy and how to determine bigamy

Article 258 of the Criminal Law of the People's Republic of China stipulates that a person who has a spouse and marries him, or who marries another person knowing that he has a spouse, shall be sentenced to fixed-term imprisonment of not more than two years or criminal detention. According to Article 258 of the Criminal Law and relevant judicial interpretations, bigamy refers to one party having a spouse and registering a marriage with another person or living together with another person in the name of husband and wife; and the act of registering a marriage with another person knowing that he or she has a spouse, or living together as husband and wife.

There are two types of persons who constitute bigamy: the first is a person who has a spouse and registers his marriage with another person, or lives with another person in the name of husband and wife; The second category is a person who knows that another person has a spouse and registers his marriage with him, or lives together as husband and wife. The second category of persons who require bigamy to be aware that the other person already has a spouse, knows in advance, or knows afterwards and continues to maintain the marital relationship, is knowing. On the other hand, ignorance and deception do not constitute bigamy.

The key to determining bigamy is whether it constitutes another husband and wife relationship. According to the relevant judicial interpretations, there are two types of bigamy: one is legal bigamy (known as legal marriage in legal theory), which refers to the registration of marriage between a person with a spouse and another person.

Marriage registration authorities.

Marriage registration. The second is de facto bigamy (known as de facto marriage in legal theory), that is, a person with a spouse lives together with another person in the name of husband and wife. How to understand that a person with a spouse lives with another person as husband and wife?

According to Article 2 of the Opinions on Handling Illegal and Criminal Acts and Property Issues in Marital Relations (Yue Gao Fa [2000] No. 18) issued by the Guangdong Provincial High People's Court, the Guangdong Provincial People's Procuratorate, the Guangdong Provincial Public Security Department, and the Guangdong Provincial Department of Justice, in any of the following circumstances, they shall be deemed to have lived together in the name of husband and wife: 1. A person with a spouse holds a marriage ceremony with another person; 2. A person with a spouse who has not held a marriage ceremony with another person, but is commensurate with husband and wife or considers himself husband and wife to the outside world.

First, the parties and both subjects are registered Second, the parties are registered with one of the subjects, but they live with the other by concealment or deception, and they have children, and they are both financially self-proclaimed families, which I get from the examples of people around me].

At least two or more results in hand].

Legal analysis: The key to determining bigamy is whether it constitutes another husband and wife relationship. According to the relevant judicial interpretations, there are two situations of heavy grinding marriage:

The first is legal bigamy, which refers to a person who has a spouse registers a marriage with another person; The second is de facto bigamy, that is, a person who has a spouse lives with another person in the name of husband and wife.

Legal basis: Civil Code of the People's Republic of China

Article 1042:Arranged marriages, buying and selling marriages, and other acts that interfere with the freedom of marriage are prohibited. It is forbidden to solicit money or property under the pretext of marriage. Bigamy is prohibited. It is forbidden for a spouse to cohabit with another person. Domestic violence is prohibited. Abuse and abandonment between family members are prohibited.

Article 1051:Marriage is null and void in any of the following circumstances: (1) bigamy; (2) Have a family relationship that prohibits marriage; (3) They have not reached the legal age for marriage.

Legal Analysis: The conditions for determining the crime of bigamy are as follows:

1.Object element: The object of the offence of bigamy is a monogamous marriage. Article 2 of the Marriage Law stipulates that a marriage system of freedom of marriage and equality between men and women shall be practised.

2.Objective element: The crime of bigamy is objectively manifested in the fact that the perpetrator must have the act of bigamy.

That is, if a person who has a spouse marries another person, or marries another person knowing that he is a good match, he or she marries another person, it constitutes the crime of bigamy. Article 3 of the Marriage Act prohibits bigamy.

3. Subject Elements: The subject of the crime of bigamy is a general subject, - a person who has a spouse and establishes a marriage relationship with another person during the existence of the marital relationship; The second is a person who does not have a spouse and marries the other party knowing that the other party has a spouse.

4.Subjective element: The crime of bigamy is subjectively manifested as direct intent, i.e., knowingly marrying another person with the knowledge that he has a spouse or intentionally marrying another person with the knowledge that he has a spouse.

Legal basis: Article 258 of the Criminal Law of the People's Republic of China: Whoever has a spouse and bigamy, or marries Duan Xuanzhi knowing that another person has a spouse, shall be sentenced to fixed-term imprisonment of not more than two years or short-term detention.

Under monogamy, the act of marrying another person with a spouse, or marrying another person knowing that he or she has a spouse, constitutes bigamy. Under China's current legal system, marriage can be divided into legal marriage and de facto marriage, the former is a registered marriage, and the latter is an unregistered marriage but both parties live together in the name of husband and wife and can be recognized as a de facto marriage in accordance with relevant regulations.

In the determination of bigamy, it is necessary to distinguish between pre-marriage and post-marriage, in which the pre-marriage must be a legal and valid marital relationship, that is, it is either a legal marriage or a de facto marriage, and the problem of bigamy may arise. In order to fully protect the legally effective former marriage, the subsequent marriage does not need to have legal effect, and only living together in the name of the husband and wife will also be recognized as bigamy, and must bear the corresponding civil and criminal legal liabilities.

There are two requirements for the construction of a sakura bigamy:

1. One or both parties already have a valid marital relationship. This is a prerequisite for bigamy. If both sides.

Neither of them is married, divorced or widowed, and cannot constitute bigamy.

If one or both parties are married, but their marriage has been declared null and void or annulled, it cannot constitute bigamy. Null and void marriages must be determined through legal procedures. In the case of a void or voidable marriage, if the parties to an invalid or voidable marriage are still married until their marriage is declared null and void without legal procedures, it constitutes bigamy.

2. There are two forms of marriage between a person who has a spouse and another person: one is that a person who has a spouse and registers his marriage with another person, which is legal bigamy; Second, although the marriage has not been registered, but living together with another person as husband and wife, this is a de facto bigamy. In real life, it is basically de facto bigamy as the main cousin and present form of bigamy.

Cohabitation is not the same as bigamy. Cohabitation of a spouse with another person refers to a person with a spouse living together with a person of the opposite sex outside of marriage who does not continue to live together in the name of husband and wife. Commonly known as concubine.

Legal basis

Article 1042 of the Civil Code of the People's Republic of China prohibits arranged marriages, buying and selling marriages, and other acts that interfere with the freedom of marriage. It is forbidden to solicit money or property under the pretext of marriage.

Bigamy is prohibited. It is forbidden for a spouse to cohabit with another person. Article 1051 Marriage shall be null and void under any of the following circumstances:

a) bigamy; (2) Have a family relationship that prohibits marriage;

(3) They have not reached the legal age for marriage.

Article 258 of the Criminal Law of the People's Republic of China: Whoever has a spouse and marries a person, or clearly knows that another person has a spouse and marries him, is sentenced to up to two years imprisonment or short-term detention. Article 259 Whoever clearly knows that he is the spouse of a serviceman on active duty and cohabits or marries with him shall be sentenced to fixed-term imprisonment of not more than three years or short-term detention.

The boundaries between bigamy and non-bigamy should be distinguished from the following aspects.

1 A distinction should be made between the crime of bigamy and the abduction and bigamy of a married woman who is trafficked. In recent years, the crime of abduction and trafficking in women has been quite serious. In this case, although the trafficked woman objectively has bigamy, she does not subjectively have the intention of bigamy, and bigamy with another person is the result of deception or coercion by others.

2 It is necessary to distinguish between the crime of bigamy and temporary concubinage. Concubinage refers to a man and a woman temporarily living together in the name of husband and wife without marriage, and does not constitute the crime of bigamy. On January 27, 1958, the Supreme People's Court pointed out in the Reply to the Issue of How to Determine the Conduct of Bigamy:

If two people live together, but it is obvious that they are only in a temporary confinement relationship, and they treat each other as "concubines" and can freely withdraw at any time, or the congenital relationship is terminated after the expiration of the agreed period, it can only be regarded as simple illegal cohabitation, and cannot be regarded as bigamy. ”

3 The distinction between sin and non-sin is based on the seriousness of the circumstances. In practice, the circumstances and harms of bigamy are classified as minor and severe. According to Article 13 of this Law, "where the circumstances are obviously minor and the harm is not great, it is not considered a crime."

Therefore, the act of bigamy does not necessarily constitute the crime of bigamy. Only bigamy where the circumstances are more serious and the harm is greater can constitute a crime. According to the spirit of the legislation and practical experience, the following two acts of bigamy do not constitute the crime of bigamy:

1) One of the spouses has bigamy because he or she has fled due to unbearable abuse. In practice, due to the influence of factors such as feudal ideology or family conflicts, the phenomenon of abuse between husband and wife occurs from time to time. If one of the parties, especially women, marries another person in another place after fleeing because they are not abreast of the abuse, it is not appropriate to punish the crime of bigamy because the motive of this bigamy is to get rid of the abuse and the harm to society is obviously less.

2) A person who has bigamy with another person due to a disaster and has fled abroad. Those who are unable to live in their place of origin due to a disaster and have migrated to earn a living. One party knows that the other party is still alive, and some even the two parties have migrated together to earn a living, but they are forced to make a living and have to marry another person while the original relationship exists.

Although this kind of bigamy has the intention of bigamy, it is not very harmful to society and should not be punished as the crime of bigamy.