The law stipulates: "During probation or parole, as long as they meet the conditions stipulated in the Marriage Law, they are allowed to fall in love and get married without the examination and approval of the public security organ or the people's court."
In other words, as long as you are unmarried, you can get married when you are of marriageable age and have no close relatives.
You can look at some rules:
Equal enjoyment of criminals' rights
(A) on the marital rights of criminals
Do criminals have the right to get married? Theoretical and practical circles have no objection to criminals' right to divorce, but they have completely opposite understanding of whether criminals have the right to marry.
In judicial practice, the judicial organs first showed their attitude towards the criminals' right to get married, which was the Joint Reply of the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security 1963 "On probation, parole, execution outside prison and other marriage and love issues of criminals". In the "Reply", the judicial organs made the following explanations on whether criminals have the right to marry in three situations: First, the love and marriage problems of criminals sentenced to probation or parole during probation or parole are allowed as long as they meet the conditions stipulated in the Marriage Law, and they do not need the approval of public security organs or people's courts; Second, the marriage and love issues of criminals over 55 years old, physically disabled, released on bail pending trial and executed outside prison, and two types of criminals sentenced by the court in the past can be allowed to be examined by the marriage registration authority without the approval of the public security organ or the people's court. Third, it is not appropriate to allow criminals who are released on parole for medical treatment due to illness to fall in love and get married, considering that they will be put in prison for execution after illness. Judging from the three situations distinguished in the Reply, in fact, criminals who are executed outside prison or temporarily executed outside prison but still need to be executed inside prison are deprived of the right to marry, while executors outside prison, parolees who are suspended and may no longer be executed inside prison enjoy the right to marry. This position is basically adopted in the Disciplinary Regulations of Prison Reform-through-Labor Teams promulgated by the Ministry of Public Security 1982, which stipulates: "Criminals are not allowed to get married while they are in custody or released on medical parole." This shows that for a long time, only some criminals have the right to marry, and most criminals have been deprived of this right. Criminals are unequal in the right to marry.
But in fact, no law passed by the legislature of our country has deprived criminals of their right to marry. China's 1950 Marriage Law, 1980 Marriage Law and 200/kloc-0 Marriage Law all stipulate that people who meet the following conditions can get married: 1. Reach the legal age for marriage; 2. There is no medical disease that prohibits marriage; 3. Non-lineal blood relatives or collateral blood relatives within three generations; 4. No bigamy. It can be seen that the marriage law of our country does not stipulate that prisoners are not allowed to get married. In 1994 Regulations on the Administration of Marriage Registration and the Regulations on the Administration of Marriage Registration in 2003, the state only has restrictions on the age and physical condition of marriage registration, and there is no restriction on personal identity. /kloc-article 7 of the prison law passed in 0/994 clearly stipulates that "the rights of criminals ... shall not be infringed if they are not deprived or restricted according to law." In the fundamental law and the basic law of our country, only the legitimate marriage rights of citizens are protected by the state law, and the word "deprivation" has never been mentioned for criminals' marriage rights. This shows that, from the legal provisions of our country, criminals are not deprived of the right to marry, no matter what punishment they are sentenced to, whether they are executed in prison or outside prison, and they enjoy the right to marry equally in law.
It is generally believed that there are two reasons why the enforcement agencies deprive some criminals of their right to marry during the execution of punishment: first, criminals cannot exercise their marriage rights and fulfill their marriage obligations like normal people during their prison sentences; Second, both the 1994 Regulations on the Administration of Marriage Registration and the 2003 Regulations on Marriage Registration require both men and women who are willing to get married to go through the marriage formalities at the marriage registration office, but criminals serving sentences cannot go through the formalities in person. Are these reasons valid? The author believes that the right to marry is the right of citizens to decide whether to get married, when to get married and with whom, and whether they can live a normal marriage life after marriage is not the content of the right to marry. If the latter decides the former, it is impossible to get married in many cases. For example, people with impotence can't have a normal sex life with each other after marriage, and separated people can't live together for many years after marriage. However, in these cases, the marriage registry did not deprive them of the right to marry. In addition, whether you can get married in person should not decide whether you have the right to get married. This problem is not difficult to solve as long as the marriage formalities are handled in a special way. Therefore, it is untenable to deprive criminals who execute the death penalty in prison of their right to marry for these reasons.
It is precisely because the reason why the judiciary deprives criminals serving sentences in prisons of the right to marry is untenable that prisoners serving sentences in prisons all over the country apply to the executive authorities for marriage. In practice, there are also cases in which the administrative organs specially approve the marriage of criminals serving sentences in reform-through-labour institutions. For example, in February 2000, 65438, Zhang He began to fall in love, and soon they developed into a cohabitation relationship. 200 1 at the end of the year, Zhang took her to her parents' house because she was pregnant. 65438+At 9 o'clock on the evening of February 30, Zhang Wei's sister Lei Qing raped her while she was asleep. Later, Zhang raped Lei Qing twice. On August 8 of the following year, the People's Court of Lengshuitan District of Yongzhou City sentenced Zhang to three and a half years' imprisonment for rape. During the execution of the penalty, he agreed to marry Zhang. Deng Guicheng, director of Zhang Xiang Detention Center, reflected his thoughts on marriage registration. The executive organ reflected this problem to the superior. On February 19, 2004, the Ministry of Public Security issued document No.28 [2003], and the reply was as follows: Marriage is a civil right of citizens. If a prisoner applies for marriage while serving his sentence, he shall be allowed to go through the marriage formalities, but the supervision safety shall be guaranteed; Please consult the local civil affairs department for specific matters. This copy is also copied to the public security departments, bureau supervision corps and offices of all provinces, autonomous regions and municipalities directly under the Central Government. On the morning of April 22, 2004, Zhang, a criminal serving his sentence in Yongzhou Detention Center, led by Deng Guicheng, director of the Detention Center, registered his marriage with the civil affairs department. (Note: Criminals who truly repent after raping their lovers and sisters are allowed to get married after serving their sentences) Red Net (visited on June 65438+1October 265438+1October 2004). Another example: 1997, Bian Tiegang was sentenced to life imprisonment for theft, and his wife Li Yumei remarried and had two children and one daughter; In 2003, after Li left, her husband returned to his hometown in Biantiegang and decided to remarry his ex-husband who was still serving his sentence in prison. The Ministry of Civil Affairs has given instructions to prison applications: exceptions are allowed for marriage procedures. On March 3rd, 2004, the criminal Bian Tiegang re-registered his marriage with his ex-wife Li Yumei, becoming the first criminal in China to get married with special approval from the Ministry of Civil Affairs. (Note: See Behind the Prisoner's Marriage Permit, Beijing News, April 2004 15 Edition A 14. )
In March 2004, the Ministry of Civil Affairs issued "Opinions on Several Issues Concerning the Implementation of the Regulations on the Administration of Marriage Registration", which stipulated: "When a criminal applies for marriage registration, he shall apply to the marriage registration authority himself and issue a valid identity document; If a criminal is unable to issue an identity document, the prison administration department may issue relevant certification materials. " "The organ that handles the marriage registration of criminals can be the marriage registration organ where one party's permanent residence is located, or the marriage registration organ where the prison is located." The Opinions clearly stipulate the marriage procedures for prisoners. Although it is not confirmed whether criminals have the right to marry, what's the point of asking criminals to go through the marriage formalities if they don't have the right to marry?
However, there are still problems in the Opinions. First, it clearly refers to the way of marriage registration of "prisoners", and the term "prisoners" refers to criminals who are executing effective judgments. Therefore, "prisoners" actually do not include criminals who are sentenced to death and executed immediately, because such criminals are only "serving their sentences" in the true sense when they are executed. Some people may think that it is meaningless for people sentenced to immediate execution to get married, and there is no need to give them the right to get married. In fact, the significance of marriage is not limited to the life of husband and wife, and some problems in reality can only be solved through marriage. For example, according to the Workers' Daily, Zhong Bangcai, who lives in Doushan Village, Sanjiao Town, Yongchuan City, Chongqing, was sentenced to death with a suspended sentence of 1999 by the Chongqing Higher People's Court on September 5 for committing robbery, and was transferred to Chongqing Prison for reform in February of the same year. Before the verdict, Zhong and he had two daughters in his life and had no marriage certificate. At present, my daughter has reached school age, but she can't study because she doesn't have a hukou. Zhong Bangcai submitted a marriage application to the prison leader. (Note: Guo: Marriage proposal by condemned prisoners, Beijing Youth Daily, 6th edition, May 2002 12. Zhong Bangcai was sentenced to death with a suspended execution, but if he was sentenced to immediate execution, if he could not marry the woman before execution, his daughter's account for studying would not be solved. The author believes that marriage, as a right, should be enjoyed equally by all criminals sentenced to any kind of punishment, and different provisions should not be made for different criminals. Second, the opinion was issued by the Ministry of Civil Affairs, and there are still uncertain factors whether the executive authorities will allow prisoners to exercise this right, because it is not binding on judicial practice. Moreover, giving criminals the right to marry has brought new problems to the work of the executive organs. Before these problems are solved, the executive authorities may restrict the exercise of some criminals' marriage rights, resulting in the inequality of criminals' actual marriage rights. In my opinion, the Supreme People's Court and the Supreme People's Procuratorate should work together with the Ministry of Justice to make clear provisions on criminals' right to marriage and how to exercise it, so that criminals can fully and equally enjoy this right.
(2) The reproductive rights of criminals.
Reproductive right is the right of citizens to decide whether and when to have children under the premise of complying with the family planning policy. Whether the reproductive right is a right independent of the marriage right is controversial in the theoretical circle (Note: See Zhu Jianzhong's On the Reproductive Right of Criminals, Journal of Social Sciences of Shanxi Universities, 2002,No. 1 1, pp. 69-72). )。 The author believes that the reproductive right is a right independent of the marriage right and belongs to the category of family right, that is, after a citizen marries and sets up a family, both husband and wife enjoy the same rights. Although unmarried childbearing is also common in China, it does not mean that unmarried people have the right to bear children, because China implements the family planning policy, and only those who meet the family planning policy can enjoy the right to bear children, otherwise even if they have children, they cannot be regarded as naturally enjoying this right. Article 17 of China's Population and Family Planning Law, which was passed on February 29th, 20001year, stipulates: "Citizens have the right to have children and have the obligation to carry out family planning according to law, and both husband and wife have equal responsibilities in carrying out family planning." In this article, although "citizens" have the right to have children, they do not give every citizen the right to have children at any time, because the second half of this article stipulates that both husband and wife have the responsibility of family planning, indicating that the right to have children is a right that married citizens enjoy according to law. From this regulation, we also clearly know that all citizens who meet the family planning policy after marriage, regardless of gender, enjoy reproductive rights equally. Moreover, there is no law in our country to deprive citizens of their reproductive rights, so from a legal point of view, criminals also enjoy reproductive rights equally. But in practice, do criminals have the right to have children? Let's look at this report: According to Zhoushan Evening News, on May 29th, 20001,Feng Luo, an employee of Zhoushan Haikou Port City Trading Co., Ltd., had a dispute with Wang Ying (female), the deputy manager of the company, and killed Wang Ying. Zhoushan Intermediate People's Court sentenced Feng Luo to death for intentional homicide. After the verdict was pronounced in the first instance, Feng Luo refused to accept it and appealed to the Zhejiang Provincial High Court. During the appeal, Feng Luo's wife Zheng Xueli filed a request for artificial insemination with the Intermediate People's Court. The court of first instance told Zheng Xueli that there was no relevant provision in the law and Zhoushan did not have the conditions for "artificial insemination". Zhoushan Intermediate People's Court rejected his request. Zheng Xueli is still fascinated. In June of the same year 165438+ 101,she submitted a written application for "artificial insemination" to the Provincial Higher People's Court. For the sake of prudence, the court of second instance convened a judicial committee to discuss, arguing that the law has no provisions on such issues, and such requests are not within the scope of court acceptance. Moreover, if Zheng Xueli's request is met, the child will be born without a father, which is extremely unfavorable to the child's future growth and will make Zheng Xueli's future life as a single mother very difficult. Finally, the court silently rejected Zheng Xueli's request. June 5438+October 2002 10, after the final judgment of Zhejiang Higher People's Court, Zhoushan Intermediate People's Court let Zheng Xueli and Feng Luo see each other for the last time. Subsequently, Feng Luo was executed, and Zheng Xueli's fertility wish was not realized. (Note: Quoted from Wang Luying: "Constitutional Thinking Caused by the Case of Reproductive Rights of Death Penalty Pending Prisoners", China Constitutional Network, /include/shownews. asp？ Research on the Theory and Problems of Constitutional Law (Part II)&; Newsid = 539 (accessed on February 2005 10). ) This case has attracted extensive attention from Legal Daily, Beijing Youth Daily, Southeast Morning Post and Sanlian Life Weekly, and the question "Do condemned prisoners have reproductive rights" has aroused discussion from all walks of life. In the debate, most people think that Feng Luo, a condemned prisoner, has no reproductive rights, while others think that Feng Luo has not been deprived of his reproductive rights from an academic point of view.
In the above-mentioned cases, the spouse of the condemned prisoner asked for childbirth, but was refused. It seems that Zheng Xueli's reproductive rights have been denied. In fact, as the author mentioned in the last part, the reproductive right is a right shared by husband and wife, not the right of which party belongs. Rejecting Zheng Xueli's request to have children also denies Feng Luo's right to have children. In this case, Zheng Xueli's request to have children was rejected precisely because Feng Luo was a criminal. This shows that in our practice, criminals (at least death row inmates) have no reproductive rights. This makes it impossible for criminals to enjoy the equal reproductive rights of citizens according to the provisions of the family planning law.
Why do criminals in our country have no reproductive rights? The reasons for opposing the reproductive rights of death row inmates are as follows: first, if death row inmates have no right to life, they naturally have no reproductive rights; Second, the condemned prisoners completely lost their personal freedom before being executed, and it is impossible to have the freedom to have reproductive behavior; Third, from the perspective of equality between men and women, if male prisoners have reproductive rights, then female prisoners also have reproductive rights, which will lead to the emergence of female prisoners evading the law; Fourth, the law does not stipulate that prisoners on death row have the right to have children; Fifth, if the condemned prisoner enjoys the right to have children, the lack of fatherly love or maternal love after the child is born will be unfavorable to the child's growth and will also bring difficulties to the other person's life. The author believes that none of these reasons can deny the reproductive rights of death row inmates (note: it should be noted that death row inmates here are married and their marriage relationship still exists, and unmarried or divorced death row inmates are not given reproductive rights by law. )。 The analysis is as follows:
1. The view that "condemned prisoners have no right to life, so naturally they have no right to have children" is untenable. A condemned man is a person sentenced to death. If a criminal is sentenced to immediate execution, the sentence will be executed soon after it takes effect, and his life will eventually be deprived by the state. However, the acquisition of reproductive rights and life rights do not coincide in time, and the loss of reproductive rights and life rights is also different. According to Article 2 1 1 of the Criminal Procedure Law, "the people's court at a lower level shall serve the enforcement ruling of the Supreme People's Court within seven days". This shows that there is still a period of time from the immediate execution of the death penalty to the execution of the death penalty, during which death row inmates can exercise their reproductive rights.
2. "Death row prisoners completely lost their personal freedom before being executed, and it is impossible to have children." This reason is inconsistent with the facts. From the traditional point of view, the realization of reproductive rights depends on the occurrence of sexual behavior, and women can only get pregnant through sexual behavior. However, the development of science and technology has brought a new way to realize reproductive rights, that is, to make women pregnant through artificial insemination. It is in this way that many couples who are impotent or infertile for other reasons have realized their desire to have children. As a special group, prisoners on death row are indeed subject to a lot of control over their personal freedom, so it is really impossible to get a woman pregnant through sex. However, with the intervention of science and technology, personal freedom and reproductive freedom are separated, and their wishes can be realized through artificial insemination.
3. Recognizing men's reproductive rights does not deny women's reproductive rights. Generally speaking, after a prisoner on death row and his ex-prison spouse get pregnant through artificial insemination, the woman completes the pregnancy process, realizes the delivery of the child and fully realizes her reproductive rights. However, if the condemned prisoner is pregnant in prison (whether through natural sexual intercourse or artificial insemination), it will make him escape legal sanctions, because Article 2 1 1 of China's Criminal Procedure Law stipulates: "After the Supreme People's Court receives the order to execute the death penalty, the lower people's court shall deliver it for execution within seven days." However, if it is found that "the criminal is pregnant", "the execution should be stopped immediately and reported to the Supreme People's Court, and the Supreme People's Court will make a ruling." After verification, the Supreme People's Court can "change the sentence according to law". In other words, the pregnancy of a female condemned prisoner will lead to the change of her death sentence. So, can we object to the reproductive rights of condemned prisoners? In my opinion, gender is not the difference between enjoying rights or not. Death row prisoners and male death row prisoners enjoy reproductive rights equally, and realizing the reproductive rights of death row prisoners does not necessarily lead them to evade the provisions of the law. Because, from a scientific and technological point of view, men can realize their reproductive rights through artificial insemination, and women may also donate their eggs, borrow other women's uterus, and help them realize their desire to be mothers by cultivating IVF. In other words, the realization of women's reproductive rights does not necessarily require pregnancy. Since pregnant women are not condemned to death, there is naturally no problem of evading the law.
4. The reason that "the law has no provisions on the reproductive rights of death penalty prisoners" is untenable in itself. Article 17 of China's Population and Family Planning Law stipulates: "Citizens have the right to have children and have the obligation to carry out family planning according to law, and both husband and wife have equal responsibilities in carrying out family planning." If it is recognized that the condemned prisoner was a citizen of our country before being executed, and the death sentence does not dissolve the lawful and valid marriage of the condemned prisoner, it must be recognized that the condemned prisoner has the right to have children according to the population and family planning law. In fact, there is no law in our country to deprive prisoners on death row of their reproductive rights, and Article 7 of the Prison Law also stipulates that "the rights of criminals … that have not been deprived or restricted according to law shall not be violated". All these indicate that condemned prisoners enjoy reproductive rights in China.
5. "If the condemned prisoner enjoys the reproductive right, the lack of fatherly love or maternal love after the birth of the child will be unfavorable to the growth of the child and bring difficulties to the other person's life", which cannot be a reason to deny the reproductive right of the condemned prisoner. After the execution of the death penalty, the child will be born without fatherly love or maternal love, and there will be some problems in the life of the living party. However, this is directly related to the existence of reproductive rights. If we think from the perspective of children or spouses, the death penalty should not exist, because many death row inmates have spouses and children before being sentenced to punishment or even before committing crimes. Isn't applying the death penalty to them also making children lose their father's love or maternal love? Doesn't it also bring difficulties to the other side of life?
Some people think: "It goes without saying that criminals sentenced to death are more guilty than criminals sentenced to life imprisonment or fixed-term imprisonment. If death row inmates have reproductive rights, then criminals sentenced to life imprisonment or fixed-term imprisonment should have reproductive rights even more. Excuse me, should these criminals be allowed to exercise their reproductive rights in prison? " The author believes that since criminals sentenced to death have reproductive rights, criminals sentenced to other punishments certainly have reproductive rights.
However, judging from the current management system of detention centers and prisons, it is not convenient for criminals to enjoy reproductive rights. As some scholars have said: "According to the regulations of the detention center, the control of pending prisoners is a high degree of personal control, and they are on duty 24 hours a day and patrol at any time. Although visits can be made according to the law, they should not exceed once a month, and each visit should not exceed half an hour. Moreover, during the visit, it is impossible to achieve sexual behavior by requiring prison guards to be present to monitor. As for the method of artificial insemination, doctors are not allowed to enter the detention center because only family members can visit and lawyers can meet. " (Note: "Can condemned prisoners enjoy reproductive rights?" , Beijing Youth Daily 20065438+0 65438+February 18, 20th edition. However, the author believes that these management systems are established under the concept that criminals have no reproductive rights. On the premise of recognizing criminals' reproductive rights, we should reform the existing detention center and prison management system to facilitate the exercise of criminals' reproductive rights.