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It shows that Pojun's crime of marriage refers to the act of marrying or cohabiting with active servicemen knowing that he is the spouse of active servicemen.
Military marriage is a marriage with active servicemen. Military marriage, which is protected by national laws, destroys the family marriage relationship of active servicemen and should be severely cracked down by criminal law.
Servicemen refer to officers and men with military status who serve in the China People's Liberation Army and the Chinese People's Armed Police Force.
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Characteristics of this crime
First, the object of this crime is the marriage relationship of active servicemen in monogamous marriage relationship stipulated in the Marriage Law.
Second, the objective aspects of this crime are as follows:
1, the actor violated the provisions of monogamy in the marriage law;
2. The actor marries or cohabites with the spouse of an active serviceman.
Third, the subject of this crime is the general subject. The object of this crime is the marriage of active servicemen, so the marriage or cohabitation of non-active servicemen and their spouses can constitute the subject of this crime, and so can the marriage or cohabitation of active servicemen and their spouses. The bigamy or cohabitation of two active servicemen, whose spouses are not active servicemen, does not constitute the subject of this crime.
Four, this crime is the subjective intention of the crime, without knowing it, it does not constitute this crime.
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penal provision
1. sentenced to fixed-term imprisonment of not more than three years or criminal detention;
Two, the use of authority, affiliation, coercion to rape the wife of active servicemen, shall be punished as rape.
Crime of sabotaging the marriage of soldiers: Article 259 1 of the Criminal Law stipulates: "Whoever knowingly cohabites or marries a soldier shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention."
The direct object of the crime of destroying military marriage is the marriage relationship of active servicemen in monogamous marriage relationship in China. It can be said that the crime of destroying military marriage is a typical case of a third party intervening, and the denial and punishment of this behavior is an inevitable requirement of monogamous marriage system. In this regard, the second paragraph of Article 3 of the Marriage Law clearly stipulates: "Bigamy is prohibited, and it is forbidden for a spouse to live with others."
The object of Pojun's marriage crime is the spouse of an active serviceman, which has both connections and differences with the object of Pojun's marriage crime. First, the two are inseparable, because the crime of breaking military marriage infringes on the marriage relationship of active servicemen, which is always realized by living together or getting married with their spouses. Secondly, the marital relationship of active servicemen is a necessary condition for any crime of destroying military marriage, and taking the spouse of active servicemen as the object of crime is also a necessary condition for any crime of destroying military marriage. Thirdly, the marital relationship of active servicemen, as the object of the crime of destroying military marriage, is the basis that this crime belongs to the crime of infringing citizens' personal rights, but not to other crimes. As the object of the crime of destroying military marriage, the spouse of active servicemen determines the difference between this crime and bigamy. Fourthly, in the crime of destroying the marriage of military personnel, the marriage relationship of active military personnel as the object of crime will be destroyed, such as instability, deterioration or even breakdown of marriage relationship. It is worth noting that the spouse of an active serviceman is also an active serviceman, so Article 33 of the Marriage Law cannot be applied, but Article 259 1 of the Criminal Law can be applied.
The harmful behavior of the crime of destroying military marriage is the act of cohabitation or marriage with the spouse of an active serviceman. It has the following two basic types:
First, bigamy destroys military marriage, that is, registering marriage with the spouse of active servicemen or living together in the name of husband and wife, although it is not registered. It can be divided into legal bigamy and factual bigamy: the former refers to the act of going through the marriage registration formalities with the spouses of active military personnel and defrauding the marriage certificate; The latter refers to the act of living together in the name of husband and wife, knowing that they are spouses of active servicemen, although they have not gone through the marriage registration formalities.
The second is the cohabitation behavior that destroys the military marriage, that is, cohabiting with the spouse of an active serviceman knowing it. This is a relatively common objective behavior of destroying military marriage crimes. The term "cohabitation" here refers to the provision in Article 2 of the Supreme People's Court's Interpretation of Several Issues Concerning the Application of Marriage Law (I), that is, spouses of active servicemen do not live together in the name of husband and wife, which is continuous and stable.
In this way, cohabitation is positioned between factual bigamy and adultery, that is, the difference between cohabitation and factual bigamy lies in whether to live together in the name of husband and wife. The difference between cohabitation and adultery lies in whether there is a continuous and stable cohabitation relationship. However, there is no corresponding regulation on how long it takes to "last" to constitute cohabitation. According to the relevant provisions in the Guiding Opinions of Guangdong Higher People's Court on Several Issues Concerning the Trial of Marriage and Family Cases in June last year, cohabitation for more than three months constitutes cohabitation.
In addition, if we only look at the provisions of Article 259 1 of the Criminal Law, there are only two harmful acts of the crime of destroying military marriage, namely, cohabitation or marriage of spouses of active military personnel. However, according to the Supreme People's Court's "Four Cases on the Crime of Violating Military Marriage", the harmful acts of violating military marriage also include long-term adultery with the spouses of active servicemen, and the circumstances are bad. Article 259 of the Criminal Law (1) does not clearly stipulate the harmful result of the crime of destroying military marriage, that is, the harmful result is not a necessary condition for the crime of destroying military marriage, but an important aspect to measure the severity of the crime of destroying military marriage and an important plot that must be considered when sentencing.
Interpretation of the Special Provisions on Military Marriage: Subject and Subjective Aspects of the Crime of Destroying Military Marriage
Source: main station time: April 7, 2006 10: 48 Reading times:
Liberation Army Daily: Subject and Subjective Aspects of the Crime of Disrupting Military Marriage
The object and objective aspects of the crime of destroying military marriage only reveal that the crime of destroying military marriage infringes on military marriage relationship and "cohabitation or marriage", and the composition of the crime of destroying the integrity of military marriage also includes subject and subjective aspects.
The subject of the crime of destroying military marriage. The subject of crime refers to the natural persons and units that commit acts that endanger society and should bear criminal responsibility according to law. According to Article 259 1 of the Criminal Law, the subject of the crime of destroying military marriage can only be a natural person and must have the ability of criminal responsibility.
According to the relevant provisions of the criminal law, criminal responsibility ability can be divided into the following four situations: First, full criminal responsibility ability. Anyone who has reached the age of 18, has sound mental and physical functions and normal intellectual and knowledge development is a person with full criminal responsibility. Second, there is no criminal responsibility at all. /kloc-people under the age of 0/4, as well as mental patients, have no criminal responsibility at all when they can't identify or control their own behavior. Third, there is relatively no criminal responsibility. Anyone who has reached the age of 14 and is under the age of 16 is a person with relatively no criminal responsibility. The fourth is to reduce criminal responsibility. Minors, deaf-mutes, blind people and mental patients who have reached the age of 14 but have not reached the age of 18 are persons with reduced criminal responsibility.
Judging from the judicial practice, because the act of breaking the military marriage crime is the cohabitation or marriage between the perpetrator and the spouse of an active soldier, and the cohabitation time is often more than three months, there are basically no minors and unhealthy people as the subject of the crime. It should be noted that if the spouse of an active serviceman is male, the subject of the crime can be female. Whether the actor has a spouse or not does not affect the establishment of the subject of crime.
Subjective aspects of the crime of destroying military marriage. The subjective aspect of crime refers to the psychological attitude of the criminal subject to his own behavior and its harmful consequences to society. It includes:
1, intentional or negligent crime. The crime of breaking the military marriage can only be a deliberate crime, that is, the act of cohabiting or getting married with an active serviceman knowing that he is the spouse of the active serviceman. The "knowing" here is not aimed at "the result of endangering society", but at the spouse of an active-duty soldier, knowing that the other person is the spouse of an active-duty soldier and living together or getting married with him. Those who are deceived by the other party and live together or get married with them shall not be punished for the crime of destroying military marriage.
2. The purpose and motive of the crime. The purpose of the crime of destroying military marriage is relatively simple, that is, destroying marriage. The motive of the crime of destroying military marriage is more complicated, some want to marry the spouse of active servicemen, some want to satisfy their own desires, and there are other motives. The purpose and motive of the crime is not a necessary condition for the crime of destroying military marriage, but it will have a certain impact on sentencing. (Zeng Huolun)
Source: Liberation Army Daily
Does the lawyer's behavior of closing the mailbox constitute the crime of destroying military marriage?
Comrade lawyer:
A few days ago, I heard that there was a deputy company commander named Lou Jianping in our army. When I visited his home, I heard that his wife had an abnormal relationship with a male colleague named Guan in his unit. This man often comes to his house and sees pictures of his wife and the man named Guan in the drawer. Lou Jianping was very angry about this and questioned his wife. She finally admitted the fact that she often lived with that man. Can you investigate the criminal responsibility of Guan for destroying military marriage?
Some Li Jianguo.
Comrade Li Jianguo:
First, if there is evidence that Guan is suspected of sabotaging the military marriage, he can bring a lawsuit directly to the people's court. According to the second provision of article 1 of the Supreme People's Court's Interpretation on Several Issues Concerning the Implementation of the Criminal Procedure Law of People's Republic of China (PRC) in September, 1998, if the people's procuratorate has not initiated a public prosecution and the victim has evidence to prove a minor criminal case, the people's court shall accept it according to law. The "minor criminal cases" here include cases of destroying military marriages.
Second, if you don't know the degree of "proof" about the alleged destruction of military marriage, you can sue the public security organ in the crime area. The public security organ shall promptly examine the appeal materials within its jurisdiction, and if it considers that there are criminal facts that need to be investigated for criminal responsibility, it shall file a case.
Third, regarding the types of crimes of controlling and destroying military marriages, we should identify them according to the existing evidence. In addition to bigamy and cohabitation stipulated in Article 259 1 of the Criminal Law, there is also long-term adultery defined in the commentary of Four Cases of Breaking up Military Marriages by the Supreme People's Court 1985. As far as the case you stated is concerned, there is at least the following evidence to prove that Guan has committed a criminal act of destroying military marriage: the testimony of neighbors that Guan often goes home; Many intimate photos of his wife and Guan; Wife's testimony about living with Guan frequently. However, to achieve sufficient evidence, the following evidence is needed: Guan has a subjective understanding of whether the company commander's wife is the spouse of an active soldier; The specific situation of cohabitation with the company commander's wife; The damage degree of the crime of destroying military marriage to marriage.
Hello, lawyer Zheng! Let me ask you something: I am an active soldier and now I live in Beijing. From May 2006 to June 2007, I went abroad on business. After returning home, I found that my wife and another man (unmarried) lived together from September 2007 to June 5438+February 2007. That man is a friend of my wife's. We have known each other for five years, and they are very close. I consulted the relevant laws and regulations, and this behavior should be considered as the crime of destroying military marriage. I'm going to sue the man, but the following questions are still unclear and need your help: 1. The man claimed that he and my wife didn't live together every day. In the three months after they had sex, my wife stayed with him about three or four days a week on average. How to identify cohabitation? Is this cohabitation? 2. If yes, how should cohabitation be obtained? At present, I have only recorded a few conversations, including the man's oral admission that he is living with my wife, and the position of the leader of the man's unit on this matter (indicating that he will give some punishment). 3. What else need to be done before prosecution? Am I the plaintiff personally or in the name of my unit? 4. If you hire your lawyer as your agent, how much will the whole litigation cost? Please reply as soon as possible, thank you very much! And wish you a happy new year!
Article 259 Whoever knowingly cohabites with or marries the spouse of an active serviceman, which constitutes the crime of destroying military marriage, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention. Whoever rapes a soldier's wife by taking advantage of his power shall be convicted and punished in accordance with the provisions of Article 236 of this Law. First, the concept and composition of the crime of destroying military marriage refers to the act of cohabiting or getting married with active servicemen knowing that they are the spouses of active servicemen. The subjective elements of the crime of destroying military marriage show the intention of destroying military marriage. In other words, the actor must know that the other party is the spouse of an active serviceman, and marry or cohabit with him. If you really don't know, the spouse of an active-duty soldier was cheated into marriage or cohabited with him, because of the lack of subjective elements of the crime of destroying military marriage, it can't be punished as the crime of destroying military marriage. However, their illegal cohabitation or marriage relationship should be dissolved according to law. Two. Punishment for the crime of destroying military marriage Whoever commits the crime of destroying military marriage shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention.