(A) the basis of criminal law
Article 258 of the Criminal Law of People's Republic of China (PRC) stipulates that the crime of bigamy refers to bigamy with a spouse, or marrying someone knowing that they have a spouse, and shall be sentenced to fixed-term imprisonment of not more than two years or criminal detention.
(2) Judicial interpretation
Article 5 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 (No.30 of Fa Shi [20065438+0]) stipulates: "If a man and a woman fail to register their marriage in accordance with Article 8 of the Marriage Law, but live together in the name of husband and wife and file a lawsuit in a people's court for divorce, they shall be treated differently:
(1) 1 994 February1Before the promulgation and implementation of the Regulations on the Administration of Marriage Registration of the Ministry of Civil Affairs, if both men and women have met the necessary conditions for marriage, they shall be treated as de facto marriages;
(2) After the promulgation and implementation of the Regulations on the Administration of Marriage Registration of the Ministry of Civil Affairs in February 1994, if both men and women meet the necessary conditions for marriage, the people's court shall inform them to re-register their marriage before accepting the case; If the marriage registration is not handled, it shall be handled as dissolution of cohabitation. "
In this judicial interpretation, the Supreme People's Court took the implementation date of the Marriage Registration Ordinance promulgated by the Ministry of Civil Affairs in February 1994 as the time limit for identifying "de facto marriage" and "illegal cohabitation relationship", just to solve the civil legal problems of "de facto marriage" and "illegal cohabitation relationship" in civil disputes of marriage and family. We can assume that if it involves a criminal case in which a spouse lives with others in the name of husband and wife.
As for legal issues, marriage cannot be regarded as a de facto marriage, nor can people with spouses be required to "re-register", because if people with spouses live together with others in the name of husband and wife, whether this behavior occurred before 1 February/9941day or not, it is definitely not in line with a de facto marriage.
In fact, the Supreme People's Court's "Reply on whether bigamy cases occurred after the implementation of the regulations on marriage registration are convicted and punished for bigamy" [19941214] has given a clear answer: "After the promulgation and implementation of the new regulations on marriage registration (1994 65438), 1 994 February1If 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) Civil foundation
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.