Recently, Nanjing Zero Distance reported a ridiculous bigamy farce in Kunshan City, Jiangsu Province. Zhang Mou, 35, took advantage of the lack of network loopholes in the inter-provincial marriage system. He married three wives in Jiangsu, Henan and Anhui provinces, respectively, and each had a child. Three wives were arranged by Zhang Mou in three neighborhoods about a kilometer. After all, the paper could not contain the fire. The second wife, Ms. Chen, first discovered her husbands cat fatigue and reported her husbands bigamy to Kunshan police. After investigation, the police transferred her husband to the procuratorate for examination and prosecution. After reviewing according to law, the procuratorate considers that the suspect Zhang Mou has a spouse and bigamy, which violates Article 258 of the Criminal Law of the Peoples Republic of China. The criminal facts are clear and the evidence is solid and sufficient. The criminal responsibility of the suspect should be investigated for bigamy and prosecuted finally.
In response to the legal problems exposed in this case, Peng Mei News made a detailed analysis of the first instance criminal judgment based on bigamy crime in openlaw, a database of legal documents. It was found that in the past five years, at least 239 people were sentenced for bigamy in China. Among them, the proportion of women committing bigamy crime was not low, accounting for 46%. Similar to Zhang Mou in Kunshan bigamy case, many suspects in bigamy case argue that they do not know that their behavior violates the criminal law and think it is only a moral problem. This lack of legal awareness is a high proportion of migrant workers, and some even think that couples who have separated for several years are divorced.
Family is the cell of society. Marriage is a combination of sexes for the purpose of permanent life. Harmonious marriage relationship is the basis and link to maintain family stability. The crime of bigamy is a crime caused by the superposition of multiple marriages, which infringes the basic rights of the innocent party, destroys the marriage and family relations and corrupts the social atmosphere. The case of bigamy in Kunshan and the fact that there are more cases of bigamy among migrant workers reveal that some citizens still have misunderstandings about marriage system and bigamy crime. In addition, the objective factors, such as the great difference between urban and rural areas and the strong mobility of population, may still be common in bigamy cases in the future. Therefore, we should strengthen the work of law popularization and improve citizensbasic legal awareness of bigamy crime. At the same time, we should implement the national marriage registration information network and electronic file as soon as possible, effectively block the loopholes of cross-provincial bigamy certificate, and reduce bigamy, fraud and other acts.
Legislative provisions on bigamy
The crime of bigamy is stipulated in Article 258 of the Criminal Law. Whoever has a spouse and bigamy, or knowingly marries another person who has a spouse, shall be sentenced to fixed-term imprisonment of not more than two years or criminal detention. In addition, bigamy crime involves marital relationship, so the marriage law and its related interpretation are also important legal provisions to be considered in the determination of bigamy crime. In particular, Article 5 of the Interpretation of the Supreme Peoples Court on Several Questions Concerning the Application of the Marriage Law of the Peoples Republic of China (1) (hereinafter referred to as Interpretation (1)) stipulates the determination of de facto marriage: Men and women who live together in the name of husband and wife without registration in accordance with Article 8 of the Marriage Law shall be treated differently when suing for divorce in the Peoples Court: (1) Before the promulgation and implementation of the Regulations on Marriage Registration Administration of the Ministry of Civil Affairs on February 1, 1994, if both men and women have met the substantive requirements of marriage, they shall be treated in accordance with the factual marriage; (2) If, after the promulgation and implementation of the Regulations on Marriage Registration Administration of the Ministry of Civil Affairs on February 1, 1994, both men and women meet the substantive requirements of marriage, the Peoples Court shall inform them that the marriage registration shall be completed before the case is accepted If a marriage registration is made, it shall be handled according to the dissolution of cohabitation.
Common circumstances of bigamy
Combined with the above-mentioned legal provisions, the common cases of bigamy in practice can be summarized as the following three kinds:
Two or more legal marriages, that is, in the case of Kunshan bigamy. If the perpetrator registers to marry a third person during the period of marriage, the crime of bigamy shall be constituted; if the third person knows that he has another legal marriage relationship and still registers to marry him, the crime of bigamy shall also be constituted, but if the third person does not know it, the crime of bigamy shall not be constituted. In addition, according to the provisions of Article 2 of the Marriage Law of our country, Marriage freedom, monogamy, equality between men and women only the first marriage registration is legal and effective.
Specifically, in the Kunshan bigamy case, the marriage between Zhang Mou and his first wife, Mrs. Ren, is legal and effective. However, although the marriage between Zhang Mou and the later two wives, Ms. Chen and Ms. Wang, has been registered by the civil affairs department, it is invalid from the beginning. The children born in Kunshan belong to children born out of wedlock in legal status, and the property disputes and child support need to be solved separately.
Legal marriage + de facto marriage, that is, people with spouses live together with others in the name of husband and wife, or live together with them in the name of husband and wife knowing that others have spouses. Although in accordance with Article 5 of Interpretation (1), de facto marriage is not protected by the Marriage Law and is regarded as cohabitation relationship, this kind of situation may constitute bigamy crime in criminal law, because it destroys the registered legal marriage relationship and causes actual damage to the legal interests protected by the bigamy crime. Therefore, the crime of bigamy may be constituted as long as it is recognized in judicial practice that it belongs to living together in the name of husband and wife. Although the parties have not registered for marriage, the holding of marriage ceremonies, celebrating the full moon for their children in the name of their parents, and the signature of the man in the name of his father when the woman gives birth to a child in the hospital can all be used as supporting evidence for the identification of cohabitation in the name of husband and wife.
It is worth noting that although a spouse cohabits with other people, such as Bao Er Daughter-in-law and loving in love, as long as both parties have no objective of living together in the name of husband and wife subjectively, they will not constitute the crime of bigamy.
Factual marriage + legal marriage or de facto marriage should be treated differently. Firstly, due to the objective existence of historical legacy problems, although China currently practices marriage registration doctrine, but also limited recognition of the legal effect of de facto marriage. According to Article 5 of Interpretation (1), de facto marriage formed before February 1, 1994 is valid and regarded as a legally established monogamous marriage. In the case of effective de facto marriage, the perpetrator registers to marry a third person or cohabits in the name of a husband and wife, and if he knows that another person has a valid de facto marriage, he or she still registers to marry or cohabits in the name of a husband and wife, this constitutes the crime of bigamy.
Secondly, if a de facto marriage was formed after February 1, 1994, and according to Article 5 of Interpretation (1), it does not belong to a legal and effective marriage relationship, and if one party registers to marry a third person or lives together in the name of a husband and wife, it does not constitute the crime of bigamy.
At the same time, there are some common misunderstandings that should be clarified. For example, if divorced from a spouse in a lawsuit, marriage with a third person may not be registered during the period when the divorce judgment has not yet entered into force, because the previous marriage relationship has not been formally dissolved. If divorced by agreement with the spouse but not registered for divorce, they shall not register to marry a third person or live together in the name of husband and wife, because the marriage relationship without divorce registration still exists and is valid. In addition, emotional breakdown and years of separation are not equal to divorce.
Accelerating the Implementation of National Marriage Registration Information Networking and Electronic Paper Archives
The bigamy case in Kunshan also exposed the loopholes of cross-provincial bigamy certification caused by the fact that the marriage registration system has not yet been nationwide networked. In March 2011, the Ministry of Civil Affairs issued the Notice on Accelerating the Work of National Marriage Registration Information Networking, which clearly put forward that in order to further strengthen marriage management, enhance service capacity, safeguard the seriousness and authority of marriage registration work, and safeguard the legitimate rights and interests of marriage parties, it will vigorously promote the work of national marriage registration information networking within three years, and gradually establish a national marriage. Registration data center.
Although as early as 2012, the Ministry of Civil Affairs announced that it had initially established a central-level marriage registration data center and provincial marriage registration network platform and data center in all provinces, the actual situation is not satisfactory. At present, only some provinces such as Beijing, Shanghai, Shaanxi and Qinghai have realized the sharing of marriage registration information. Moreover, due to the long time before this, manual marriage registration has been adopted, which makes some provincial marriage registration network platforms and data centers still have a large number of paper files to be scanned and stored electronically. This objectively left a loophole for the actor to cross-provincial bigamy certificate and provincial bigamy certificate.
In March 2018, Liu Yuelun, member of the CPPCC National Committee and chairman of the Guangzhou CPPCC National Committee, submitted a proposal on Promoting the innovation of marriage registration, realizing the standardization, informationization and humanization development. The proposal mentioned the problem of cross-regional marriage registration. In response, the Ministry of Civil Affairs said, At present, there are two main constraints to cross-regional marriage registration: one is the level of laws and regulations... Second, in practice, due to the low level of informationization of marriage registration in China, the incomplete database of marriage registration information, the incomplete sharing of information among departments and the lack of effective integration of marriage-related information, it is difficult to ensure the accuracy of information verification of parties, and it will also affect the accuracy of marriage registration in other places. Next step, we will further promote historical data supplement, promote data sharing among departments, improve the national marriage registration information database, promote citizenship information verification and identity card number association, and guide the local government to actively carry out the pilot work of marriage registration in different places.
To sum up, it is one of the important tasks of the Ministry of Civil Affairs to promote the supplement of historical data of marriage registration, improve the national marriage registration information database and promote data sharing. Only when the national marriage registration information network is finally implemented, and the historical data in the paper archives are computerized, can such absurd farce as the Kunshan bigamy case be stopped.
Source: Qian Mingxiao_NBJ10675, Responsible Editor of Chinese Womens Daily