What needs special attention is that after the promulgation and implementation of the Regulations on the Administration of Marriage Registration, China no longer recognizes de facto marriage. Article 58 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China stipulates: "Men and women who have not registered for marriage as stipulated in Article 8 of the Marriage Law and live together in the name of husband and wife shall be treated differently if they sue the people's court for divorce: (1) Marriage registration issued by the Ministry of Civil Affairs in February, 1994, and (2) Regulations on the Administration of Marriage Registration of the Ministry of Civil Affairs in February/kloc. If the marriage registration is not handled, it shall be handled as dissolution of cohabitation. "
There are three main types of bigamy: 1, registered marriage with a spouse and registered marriage with others, that is, bigamy with two legal marriages. People with spouses register for marriage with others, whether by cheating the marriage registration office or colluding with the staff of the registration office to obtain a marriage certificate, all belong to this category. 2. A registered marriage with the original spouse, but not registered with others, but living together in the name of husband and wife and bigamy, is a "de facto marriage type" (according to the marriage registration regulations, there is no so-called de facto marriage, but it is still handled according to the provisions of the Supreme Court). 3. No spouse, but knowing that the other party has a spouse, remarry by registered marriage or live together in the name of husband and wife.
So to sum up, bigamy includes legal bigamy and de facto bigamy. 1, legal bigamy means that the previous marriage has not been dissolved and registered with others; 2. Factual bigamy refers to the fact that the previous marriage was not dissolved and a de facto marriage was formed with others. According to the relevant judicial interpretation, if a person with a spouse lives with others in the name of husband and wife, or knows that others have a spouse and live together in the name of husband and wife, he should still be convicted and punished for bigamy.
China implements strict monogamy, and from criminal law to marriage law, corresponding punishment measures have been formulated for any spouse who violates the duty of loyalty, among which bigamy is the most severe.
This paper mainly sorts out several misunderstandings about bigamy.
1. Is bigamy a case of public prosecution or private prosecution?
According to the provisions of the judicial interpretation of the Criminal Procedure Law, the procuratorate does not prosecute the crime of bigamy. If the victim has evidence to prove the crime of spouse bigamy, he can directly bring a lawsuit to the court, and the court shall accept it according to law. If the evidence is insufficient and the public security organ can accept it, or the court thinks that the defendant may be sentenced to more than three years in prison, it shall be transferred to the public security organ for investigation.
Therefore, the crime of bigamy can take the road of criminal private prosecution, or it can be reported to the public security organ and prosecuted by the procuratorate. As long as there are clear accusers and basic criminal evidence, the public security organ shall not refuse to file a case on the grounds that bigamy is a private prosecution case.
Of course, criminal victims can choose to prosecute or prosecute themselves. The difference is that as a case of private prosecution, the victim, as a private prosecutor, can reconcile with the defendant at any time. After entering the public prosecution procedure, the investigation, public prosecution and other procedures are dominated by public and procuratorial organs. But as a public prosecution case, the deterrent power is obviously much greater. At the same time, there is no difficulty in obtaining evidence in private prosecution cases.
Second, is marriage certificate the only core factor of conviction?
The determination of de facto marriage is different in the field of civil law and criminal law. The de facto marriage after 1 994 February1is not recognized in the civil field, but it is recognized in the criminal field.
This is because, in the criminal field, the Supreme Court has clearly replied: "After the promulgation and implementation of the new Regulations on the Administration of Marriage Registration (issued by the Ministry of Civil Affairs in February 1994), people with spouses who live together in the name of husband and wife, or who know that others have spouses and live together in the name of husband and wife, should still be convicted and punished for bigamy."
That is to say, even if both men and women don't get a marriage certificate, as long as one of them has a legal spouse before and there is evidence to prove that they live together in the name of husband and wife, it is possible to commit bigamy.
Third, how to prove cohabitation in the name of husband and wife?
In real life, most bigamy crimes are that you can't get a marriage certificate and you can't do a wedding. Rich people "support" lovers, and corrupt officials "mistresses" emerge one after another, but few people are investigated for bigamy.
For example, Wu Changshun, the famous director of Tianjin Public Security Bureau, committed adultery with many women for a long time, but in the end, the court sentenced Wu Changshun to a suspended execution on six charges: corruption, bribery, embezzlement of public funds, bribery by the unit, abuse of power and perverting the law. Bigamy is not involved. According to media reports, so far, only two corrupt officials have been prosecuted for bigamy, one of whom is Qiu Xiaohua, former director of the National Bureau of Statistics. Another person is Ming Jiang, former secretary of Nanjing Lishui District Committee.
This also shows from the side that it is difficult to prove that the defendant lives together in the name of husband and wife. But perhaps, we can get some clues from the case of Qiu Xiaohua, who was the first senior official to be held accountable for bigamy.
The key evidence for the prosecution to accuse Qiu Xiaohua of bigamy is that Qiu Xiaohua signed the word "Qiu Xiaohua" in the column of the baby's father, and the woman filled in the column of "relationship between the two" as "husband and wife". If you want to accuse an unfaithful spouse of bigamy in the future, you can first find out whether the other spouse has an illegitimate child. Try to find out whether the other party has signed in the name of the father on the documentary evidence such as the birth record of the illegitimate child.
Bigamy refers to the act of marrying someone who has a spouse or knowing that someone else has a spouse. The following is the 20 17 criteria for determining the crime of bigamy compiled by Mobile Notary. Welcome to reading.
20 17 criteria for determining the crime of bigamy
First, the determination of the crime of bigamy
Bigamy refers to the act of marrying someone who has a spouse or knowing that someone else has a spouse. The so-called spouse means that a man has a wife and a woman has a husband. This relationship between husband and wife still exists without legal procedures, that is, a person with a spouse; If the relationship between husband and wife has been dissolved, or the relationship between husband and wife naturally disappears due to the death of one of the spouses, it is no longer a spouse. The so-called marriage with others includes those who cheat marriage registration and those who live together as husband and wife without marriage registration. The so-called marriage knowing that others have a spouse means that although I don't have a spouse, I knowingly marry the other person (including registered marriage or de facto marriage). This kind of behavior is an act of deliberately destroying other people's marriage.
(A) the objective elements of the crime of bigamy
The object of bigamy is monogamous marriage. Monogamy is a principle stipulated in China's marriage law. Bigamy has destroyed the socialist marriage and family system in China and must be punished by criminal law.
(B) the objective elements of bigamy crime
The crime of bigamy objectively shows that the actor must have bigamy. That is, a person with a spouse marries another person, or marries another person knowing that he has a spouse, which constitutes bigamy.
The so-called spouse means that a man has a wife and a woman has a husband. This relationship between husband and wife still exists without legal procedures, that is, a person with a spouse; If the relationship between husband and wife has been dissolved, or the relationship between husband and wife naturally disappears due to the death of one of the spouses, it is no longer a spouse. The so-called marriage with others includes those who cheat marriage registration and those who live together as husband and wife without marriage registration. The so-called marriage knowing that others have a spouse means that although I have no spouse, I know that the other person has a spouse and marry him (including registered marriage or de facto marriage). This kind of behavior is an act of deliberately destroying other people's marriage.
(three) the main elements of the crime of bigamy
The subject is a general subject. First, the spouse has established a marriage relationship with others during the existence of the husband-wife relationship; Second, people who have no spouse get married knowing that they have a spouse.
(D) Subjective elements of bigamy crime
Subjectively, it is direct intention, that is, knowing that others have a spouse and marrying them, or deliberately marrying others because they have a spouse. If one spouse really doesn't know that the other spouse has a spouse and marries him or lives with him as husband and wife, then the person without a spouse does not constitute bigamy, and the person with a spouse constitutes bigamy.
Second, how to punish bigamy?
Whoever commits bigamy while having a spouse, or marries someone knowing that they have a spouse, shall be sentenced to fixed-term imprisonment of not more than two years or criminal detention.
Third, the legal responsibility of bigamy.
(1) criminal responsibility
1, bigamy criminals who commit bigamy shall be sentenced to fixed-term imprisonment of not more than two years or criminal detention.
2. Bigamy seriously violates the personal rights of the innocent party, hinders and destroys the safety of marriage and family, and has certain social harm. Therefore, the criminal laws of many countries recognize bigamy as a criminal act that should be punished by punishment. China's current criminal law clearly stipulates that bigamy is a crime that violates personal rights and should be punished by criminal law. China's marriage law is in line with the current criminal law. Article 45 clearly stipulates: "Bigamy shall be investigated for criminal responsibility according to law."
However, in real life, it is not easy for the law to impose criminal punishment on bigamy, which is manifested in the fact that the criminal punishment for factual bigamy is difficult to implement and the punishment for concubinage is pale and powerless. From 65438 to 0999, only about 10 cases were accepted by the two-level courts in Guangzhou, which was extremely disproportionate to the serious situation of disguised bigamy in society, so that most of the actual bigamy could not be investigated by criminal law.
(2) Civil liability
1, based on bigamy, concubinage in disguised form, and the intervention of a third party, it is a violation of the loyal obligations of husband and wife, and seriously infringes on a series of spouse rights such as the right to live together and the right to chastity of the innocent party. Therefore, it is decided that the law should not only give criminal punishment to bigamy, but also bear punitive damages to the innocent party. The criminal punishment of bigamy is a means to protect the marriage and family rights of the innocent party. Therefore, the legal system of marriage should establish the system of compensation for the innocent party, and clearly stipulate in the legislation that the innocent party should be compensated for the damage caused by bigamy. Item 1 of Article 46 of China's Marriage Law stipulates: "In case of divorce due to bigamy or cohabiting with others, the innocent party has the right to claim damages". This reflects the economic compensation for the damage of the innocent party. This is compensatory to the innocent party and punitive to bigamy.
2. In divorce proceedings, if the marriage relationship breaks down due to bigamy, the bigamist and the married person shall be jointly and severally liable for compensation to the innocent party. In modern times, the marriage and family rights laws of many countries stipulate that as long as there are legitimate reasons for divorce, including bigamy, adultery, abandonment, etc., the wrong party should bear the liability for damages. In this respect, China's marriage law has reasonably drawn lessons from the beneficial experience of foreign marriage and family legislation, and clearly stipulates that if divorce is caused by bigamy or cohabitation outside marriage, "the innocent party has the right to claim damages." This is the first time that the system of compensation for damages has been established in China's marriage legal system, marking the further improvement of China's civil liability system in the field of marriage and family.
4. What are the characteristics of bigamy?
(1) Judging from the subjective characteristics of bigamy, its bigamy behavior is direct and intentional. This kind of direct intention is manifested as: marrying others knowing that their existing marriage relationship has not been dissolved, or marrying others knowing that they have a spouse.
(2) The object of bigamy is monogamy, and the victim's "legal marriage relationship" is only the object of bigamy. The first view directly confuses the difference between criminal object and criminal object.
(3) The objective aspect of the crime of bigamy is that bigamy violates the fundamental marriage system of monogamy and carries out bigamy. That is, the crime of bigamy has two marriages at the same time, and whether the previous marriage relationship is legal or not does not affect the composition of bigamy.
(4) In judicial practice, the former marriage is illegal and the later marriage is "legal", which is a means adopted by bigamists to escape legal sanctions under the new situation and a new manifestation of bigamy crime.
Elements of bigamy;
1, the object of infringement is monogamy stipulated in China's marriage law.
2. Objectively, the actor must commit bigamy, that is, a person with a spouse marries someone else, or marries him knowing that he has a spouse. In practice, there are two kinds of bigamy: one is legal marriage and the other is de facto marriage. "the Supreme People's Court's Reply on whether the case of illegal cohabitation in the name of husband and wife after execution is convicted and punished for bigamy" stipulates: "If a person with a spouse lives with others in the name of husband and wife, or knows that others have a spouse and live with them in the name of husband and wife, they should still be convicted and punished for bigamy."
3. The subject is a general subject. First, a spouse establishes a marriage relationship with others during the existence of the husband-wife relationship. Second, people who have no spouse marry each other knowing that they have a spouse.
4. Subjective aspect is direct intention. If a spouse conceals the true situation, so that a spouse is deceived into getting married, or if he is not married, he still marries others knowing that he is married, which constitutes bigamy. It is the first time for him to marry someone who has no spouse, but marrying someone who knows that he has a spouse violates monogamy and becomes a crime of bigamy.
First of all, it shows that the criteria for determining the crime of bigamy are stipulated by criminal law, not marriage law.
Criminal law of the people's Republic of China
Bigamy in China
Marriage Law
As a legal person, the crime of bigamy is basically impossible in practice at present for three reasons.
First of all, it is related to the implementation of the marriage registration system in China. Marriage law does not recognize de facto marriage. If you have already got a marriage certificate, the possibility of getting a marriage certificate is very small.
Secondly, even if there is a long-term cohabitation with the spouse, as long as they do not live together in the name of husband and wife, it does not constitute bigamy. Usually it's just moral condemnation.
Third, it is very unlikely to marry someone knowing that they have a spouse. Basically let him divorce first, commonly known as the third wife, but this does not belong to the category of bigamy.
(1) The concept and composition of bigamy refers to the act of marrying others with a spouse or knowing that others have a spouse. The constitutive requirements of this crime are: 1. The object of this crime is monogamous marriage. 2. The objective aspect of this crime is the act of marrying another person with a spouse or knowing that another person has a spouse. 3. The subject of this crime, because the crime of bigamy has dual (even) characteristics, a single person can not constitute. Therefore, the subject of this crime is two kinds of people: one is bigamy. The second one is a married person. 4. Subjectively, this crime is intentional, which is manifested as follows: 1. The person who has a spouse knows that he has a spouse and marries others. Second, a person who has no spouse marries a person who knows that he has a spouse. (2) Determination of the crime of bigamy The boundary between bigamy and non-crime. (1) The boundary between bigamy crime and bigamy behavior. (2) The boundary between bigamy and illegal cohabitation. (III) Criminal Responsibility for the Crime of Bigamy According to Article 258 of the Criminal Law, whoever commits this crime shall be sentenced to fixed-term imprisonment of not more than two years or criminal detention.
The legal definition is not strict. The explanation is: in the case of mutual understanding or having a spouse, register marriage with others. Then the question comes: how to determine? Is it proved by facts or marriage certificate? If it is proved by a marriage certificate, how did the spouse get the marriage certificate? The responsibility of the issuing authority? So the law is not clear.
How unclear is the marriage law? Women are mistresses, and it is not harmonious for men to find mistresses. Child support after divorce 18 years old mentally injured. There is no legal standard. Can you add provisions? No, the growth of many orphans is illegal ... Help orphan families all over the country to be happy in the future.
In one case, two people 1985 got married (because the woman was not old enough to register for a license), 1988 gave birth to the first child, 1996 gave birth to the second child, and in 2002 gave birth to the third child. It has been more than 3 1 year this year, and they have been living together as husband and wife. However, they have never gone to the Civil Affairs Bureau for marriage registration. At the beginning of the year, the woman secretly registered with a foreigner to get a certificate and went home once a month.
Nowadays, many people have problems with their outlook on life, especially men. Many men around us talk about family, then find mistresses outside and often take them out for dinner together. That's disgusting. Their reputation is that their wives are not around to solve physical problems. Several wives are pregnant at home and still looking for women outside, and many of them are school girls around 20 years old. It's really disgusting. The law should control which men and women with families constitute mistresses who destroy other people's families, which is a crime. Otherwise, people in this society will have less and less outlook on life.