What kind of law should be accepted for bigamy?

Article 258 of the Criminal Law of the People's Republic of China provides:"Whoever has a spouse and marries another person while knowing that he or she has a spouse shall be sentenced to fixed-term imprisonment of not more than two years or short-term detention. "

Bigamy is defined in Article 10 of the Chinese Marriage Law"The marriage is null and void"Column. The legal consequences of the invalidity of the marriage relationship, although the laws and regulations of various countries in the world are different today, are inseparable from the two punishment methods of criminal liability and civil liability for bigamy

1. Criminal liability.

Where a bigamy convict commits bigamy, he shall be sentenced to fixed-term imprisonment of not more than two years or short-term detention.

Because bigamy seriously infringes on the personal rights of the innocent party, hinders and destroys the security of marriage and family, it has a certain degree of social harm. Thus, the criminal law of many States establishes bigamy as a criminal offence punishable by criminal penalties. China's current criminal law clearly stipulates that bigamy is a crime that violates personal rights and is subject to criminal sanctions, and China's Marriage Law is compatible with the current criminal law, which is clearly stipulated in Article 45:

...... of bigamyCriminal responsibility is pursued in accordance with the law"。

2. Civil liability.

Based on the fact that bigamy, disguised concubinage, and third-party intervention are violations of the duty of fidelity of husband and wife, and it seriously infringes on a series of spousal rights such as the right of cohabitation and the right to maintain chastity of the innocent party. It is therefore determined that the law should not only impose criminal penalties on bigamists, but also that bigamists should be liable for punitive damages to the innocent party. Criminal punishment of bigamists is the means, and protecting the marital and family rights and interests of the innocent party is the goal.

To this end, the legal system of marriage should set up a system of compensation for damages to the innocent party, and clearly stipulate in legislation that if the innocent party is harmed by the crime of bigamy, it shall be compensated. Article 46, Paragraph 1 of the Marriage Law of the People's Republic of China stipulates that:"In the event of divorce due to bigamy or cohabitation of a spouse with another person, the innocent party shall have the right to claim damages"。

This reflects the financial compensation for the damage caused by the innocent party. This is compensatory for the innocent party and punitive for bigamists.

In divorce proceedings, if it is true that the divorce is due to the breakdown of the marital relationship caused by bigamy, the divorce is caused"bigamists"with"Married people"The innocent party shall be jointly and severally liable for compensation. In modern times, the rights and interests of marriage and family in many countries have stipulated that as long as there are legal reasons for divorce that hinder the existence of marriage, including bigamy, adultery, desertion, etc., the party at fault shall be liable for damages. In this regard, China's Marriage Law reasonably draws on the beneficial experience of foreign marriage and family legislation, and clearly stipulates that divorce due to bigamy or extramarital cohabitation is caused"The innocent party has the right to claim damages"。

This is the first time that a compensation system for damages has been set up in China's legal system for marriage, marking the further improvement of China's civil liability system in the field of marriage and family.

Detention or imprisonment for more than one year or two years.

Legal analysis: The crime of bigamy is mainly subject to criminal liability and civil liability, and those who commit the crime of bigamy shall be sentenced to fixed-term imprisonment of not more than two years or years of envy in terms of criminal liability; In terms of civil liability, the bigamist should also be liable for punitive damages to the innocent party.

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

Article 1054 of the Civil Code of the People's Republic of China An invalid or annulled marriage shall not be legally binding from the beginning, and the parties shall not have the rights and obligations of husband and wife. Property acquired during the period of cohabitation shall be disposed of by agreement of the parties; If an agreement is not reached, the people's court shall make a judgment on the basis of the principle of taking care of the innocent party. The disposition of property in an invalid marriage resulting from bigamy must not infringe upon the property rights and interests of the parties to a lawful marriage.

For children born to the party's brother Min Jing, the provisions of the Hona Hofa on parents and children shall apply. If the marriage is invalid or annulled, the innocent party has the right to claim damages.

Valid, the previous marriage of the crime of bigamy is a legal marriage, that is, the marriage relationship of early repentance recognized by the law of our country. At this time, there are two situations: a legal marriage with a marriage certificate and a de facto marriage recognized by the neighborhood without a marriage certificate before February 1, 1994.

There are still differences in this regard, and there are different ways to deal with it in different places. Some regions recognize de facto marriages that existed before bigamy, while others only recognize legal marriages with marriage certificates.

1. Determination of bigamy.

According to the definition in the Civil Code, a de facto marriage refers to a man and a woman living together openly in the name of husband and wife in violation of the marriage procedure, and the public recognizes that they are husband and wife. In other words, there are three constituent elements for the establishment of a de facto marriage: first, in the name of husband and wife; the second is to live together openly; Third, the masses also think that they are husband and wife.

With regard to the first element, the parties must be commensurate as husband and wife, which can be determined on the basis of the confessions of the cohabiting parties. However, since most of the parties refused to admit this after the incident, it can only be proved indirectly. If there is evidence that the two parties live in the place that they are husband and wife, including whether there is the word "happy" in the room, whether there are invitations for both parties to celebrate, and whether there are necessities for the husband and wife to live together; Whether the parties are commensurate with each other as husband and wife, and whether outsiders call them husband and wife.

As for the second element, "public cohabitation", first of all, such cohabitation must be public, that is, both parties must be undisguised about it, and the de facto marital relationship between the parties must have formal integrity, that is, it must be publicized to the outside world, and if it is secret, it cannot be recognized as a de facto marriage, but at most it can only be recognized as adultery, and adultery is not considered bigamy in law. As for "cohabitation", it contains more content, because it is precisely because the two parties constitute a "marital relationship" that this cohabitation must be completely identical or qualified to live together with the husband and wife, and include the substance of conjugal life

1) The parties must have a de facto cohabitation relationship, and such cohabitation must be long-term and stable, and if it is a short-term cohabitation that can end the relationship at any time, it cannot be considered a de facto marriage;

2) The parties must have the substance of the relationship between husband and wife, such as the parties treating each other as husband and wife, having common property, supporting each other, supporting each other, having a stable relationship between the sexes, having a common economic life, having a common social life, etc. It can be said that the above content is a substantive element for determining a "de facto marriage".

According to Article 258 of the Criminal Law of our country:

Whoever has a spouse and marries another person while knowing that he or she has a spouse shall be sentenced to fixed-term imprisonment of not more than 2 years or short-term detention. Therefore, for the party having an extramarital affair, the crime of bigamy must be punished, even if it is criminal detention. It is also a criminal offence to marry another person knowing that he or she has a spouse.

In other words, for those third parties who are willing to have extramarital affairs, they may also violate the criminal law and be subject to criminal punishment.

In the determination of the crime of bigamy, where the victim has sufficient evidence to prove the act of bigamy, the court directly files the case as a private prosecution. If the evidence is insufficient, the victim will request the public security organ to investigate, and then the procuratorate will initiate a public prosecution. Article 258 of the Criminal Code stipulates that a person who has a spouse and marries him/her, or who marries another person knowing that he or she has a spouse, shall be sentenced to imprisonment for a term not exceeding two years or criminal detention.

If they do not live together as husband and wife, it does not constitute the crime of bigamy. If they live together as husband and wife, the offence of bigamy is committed. The crime of bigamy shall be criminally responsible.

Article 258 of the Criminal Law 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 short-term detention.