The crime of bigamy refers to the act of bigamy by a spouse, or the act of marrying someone knowing that they have a spouse.
The characteristics of bigamy crime: the object is monogamy stipulated in China's marriage law; Objectively speaking, it is the act of marrying a person with a spouse or knowing that there is a spouse; The subject is a general subject, and the subjective aspect is direct intention.
Article 258 of the Criminal Law of People's Republic of China (PRC) stipulates: "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". The article also discusses the new problems after the revision of the Marriage Law. Analyze the new situation in a simple way and try to solve the existing problems.
First, the crime of bigamy generally has the characteristics of "edge"
1, the object is the degree of monogamy stipulated in China's marriage law.
Monogamy is a basic principle of marriage and family system in China. China's marriage law clearly stipulates that "bigamy and cohabitation with others are prohibited". According to this article, that is to say, a man is only allowed to marry one woman, and a woman is only allowed to have one husband? The law only allows one man and one woman to get married.
2. Objectively speaking, it is the act of marrying others with a spouse, or marrying others knowing that they have a spouse. In practice, there are two kinds of bigamy: one is legal marriage and the other is de facto marriage.
3. The subject is a general subject, which is divided into two types: one is bigamy, that is, a person who has a spouse but has not dissolved the marriage relationship and married someone else; Second, a married person refers to a person who marries others knowing that he has a spouse.
4. Subjectively speaking, it is intentional. 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.
Second, the criminal form of bigamy crime
Article 258 of the Criminal Law of People's Republic of China (PRC) stipulates: "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". From the traditional criminal law theory, there are two subjects to determine the crime of bigamy; Type: one is legal marriage and the other is de facto marriage.
1, legal marriage
A marriage that legally meets the formal and substantive requirements and constitutes the crime of bigamy is called a legal marriage. It is registered by the marriage registration authority and obtained a marriage certificate. Legal bigamy takes the completion of marriage registration as the necessary condition for the establishment of illegal marriage relationship, and whether the two parties live together can not change the fact that marriage relationship is established.
2. de facto marriage
Although there is no registered marriage, they openly live together for a long time in the name of husband and wife, forming a de facto marriage relationship. This kind of de facto marriage is not protected and recognized in the marriage law, and criminal responsibility should be investigated in the criminal law, that is, de facto bigamy should be punished as bigamy. The Supreme People's Court stipulated in 1994 12 14 "the Supreme People's Court's opinion on whether the case of illegal cohabitation in the name of husband and wife after execution is convicted and punished for bigamy": "If a spouse cohabites with another person in the name of husband and wife, or knowingly cohabites with another person in the name of husband and wife, he should still be punished for bigamy". It can be seen that in criminal law, the crime of factual bigamy is to better punish crimes and protect monogamous marriage and family relations, rather than legal recognition of factual marriage.
In real life, there are many forms. Because the legislature lags behind in legislation, there are conflicts in law. For example, a man (197 1 born) and a woman (1974 born) fall in love and live together (under 20 years old at the time of cohabitation). 1993, the two openly lived together in the name of husband and wife, gave birth to a man and a woman, and lived together for a long time. Due to the influence of the old customs, the locals followed, and a man and woman C gave birth to a daughter. When woman B knew it, she reported the case to the local police station in a rage. Finally, the public security organ applied to the procuratorate for approval to arrest a man on suspicion of bigamy, and the procuratorate prosecuted him for bigamy. After trial, the court sentenced a man to six months in prison for bigamy. In August of the same year, after a man was released from prison, he filed a complaint against woman B, demanding a "divorce" with her. When the court hears this case, then there is a conflict. Criminally, bigamy is based on de facto marriage, but in civil, it is illegal cohabitation. Why do the same court have two different determinations? Now suppose that the charges are wrong, the verdict is wrong, and a person is acquitted. What will happen? Because a man's acquittal sends a wrong signal to the society, an adult man can openly live with several underage women in the name of husband and wife, and the local people also think that they are husband and wife, which will lead to the status of marriage law in people's hearts shaking, destroying monogamy, affecting family stability and leading to family disintegration, leading to other criminal cases and public security cases, and family changes will lead to juvenile delinquency. The crime of bigamy is not recognized because it belongs to illegal cohabitation according to the relevant judicial interpretation. However, illegal cohabitation is not protected and recognized by law. Naturally, it can't be investigated in criminal cases, otherwise it will appear. Admitting bigamy in criminal cases is equivalent to acknowledging the legal relationship between husband and wife in civil cases. Of course, this is not allowed. This is a conflict between departmental laws. What we can do is to ask legislators to coordinate the conflicts and contradictions between them.
How can we solve this problem? The author thinks that the constitutive requirements of bigamy crime should be relaxed and the crackdown should be intensified. Except for legal bigamy and factual bigamy, under any of the following circumstances, it should be considered as living together in the name of husband and wife, and it can be considered as bigamy: (1) A person who has actually lived together after a marriage ceremony, although not registered for marriage, is recognized as husband and wife by the local people, and then openly lives together with others in the name of husband and wife, can also be considered as bigamy; (2) Having held a marriage ceremony and actually cohabited together, a man and a woman have not reached the legal age for marriage, but the local people think that they are husband and wife, and then openly cohabiting with others in the name of husband and wife or defrauding the marriage registration authority to obtain a marriage certificate can also be considered as bigamy; (3) The cohabitation of wives recognized by the surrounding people has caused serious consequences such as the suicide of the other party in the provincial-legal marriage; (4) A person who has a spouse has a stable cohabitation relationship with others and has lived together in a relatively fixed residence for more than six months, although he is not commensurate with husband and wife; (5) A person who has a spouse, although not married to others, has been a husband and wife and has lived together for more than three months; (6) Although the spouse has not held a wedding ceremony with others, he has a relatively stable cohabitation relationship and has children; (7) The spouse holds a wedding ceremony with others and actually lives together.
Three, the following five kinds of bigamy
1) The boundary between bigamy, adultery and cohabitation.
Adultery refers to people with spouses having extramarital sex with others. It is an immoral behavior and should be condemned by public opinion. This behavior does not constitute bigamy.
Cohabitation is a new definition of illegal cohabitation in the old marriage law after the revision of 200 1 marriage law, and there is no illegal cohabitation. Cohabitation refers to the relationship between men and women who live together in the name of husband and wife without a spouse, or the relationship between men and women who live together with a spouse without marriage registration and without meeting the substantive conditions for marriage. If it is not openly conducted with a third person in the name of husband and wife, it belongs to common cohabitation and does not belong to bigamy. Illegal cohabitation in the name of husband and wife, and one or both of them have spouses, constitutes bigamy.
2) The husband and wife file a divorce lawsuit with the court, and during the trial of the case or the appeal of the second instance, either party registers marriage with a third party, which constitutes bigamy.
3) Bigamy caused by historical issues, such as people going to Taiwan Province and their spouses staying in Taiwan Province to get married or remarry, is a special case and should not be investigated for criminal responsibility.
4) Bigamy after being trafficked, forced to live in poverty due to natural disasters, abused after marriage, forced to flee due to bigamy, remarried because of resisting arranged marriage and escaping from the marriage relationship, and remarried because the spouse is uncertain for a long time and the family has serious difficulties. These situations have their own reasons, and their subjective malignancy is relatively small. It is acceptable not to pursue criminal responsibility for bigamy.
5) Both men and women are registered for marriage, but have not yet cohabited, and one of them has obtained a marriage certificate with others or cohabited openly with others in the name of husband and wife. The locals also think that they are husband and wife, which constitutes bigamy.
Four. Determination of invalid marriage and bigamy
(A) Invalid marriage system
L, invalid marriage refers to a marriage that does not meet the substantive conditions of marriage and does not have legal effect in law. From the beginning: it has the legal effect of marriage, that is, when the marriage is declared invalid according to law, it is determined from the beginning that the marriage is not protected by law. Invalid marriage has nothing to do with the formal elements of marriage, but corresponds to its substantive elements.
2. Article 10 of the Marriage Law of the People's Republic of China makes detailed provisions on invalid marriage;
(1) bigamy. This leads to the invalidity of the subsequent marriage, while the previous marriage relationship is still valid.
(2) There are kinship relationships that prohibit marriage, that is, lineal blood relatives and collateral blood relatives within three generations.
(3) Suffering from diseases that are medically considered unsuitable for marriage before marriage and are not cured after marriage.
(4) Those who have reached the legal age of marriage, that is, the minimum age of marriage for men is 22 years old and that for women is 20 years old.
(2) Determination of bigamy in invalid marriage.
Invalid marriage shall not be denied its effectiveness before it is declared, according to the the Supreme People's Court on
1. Bigamy before invalid marriage is declared invalid. Before an invalid marriage is declared invalid, the marriage relationship is bound by the marriage certificate. If you marry someone else, it constitutes bigamy.
2. About the invalid marriage in bigamy. During the legal marriage, if the parties cheat the marriage registration office and obtain a marriage certificate by deception, the latter marriage is invalid.
For example, after a man and a woman get married separately, a man and a woman cheat to get married, so the marriage of a man and a woman is invalid, which constitutes bigamy.
(3) Prosecution of bigamy
Before an invalid marriage is declared invalid, if the parties commit bigamy, they may be convicted and punished in accordance with the provisions of bigamy. This brings new problems. Is it retrospective to pursue criminal responsibility after the crime of bigamy is declared invalid? Article 13 of the Judicial Interpretation of Marriage Law stipulates that the marriage law is invalid from the beginning, which refers to an invalid or revocable marriage, which is not protected by law from the beginning until it is declared invalid or revoked according to law. A marriage that has been declared invalid is invalid from the beginning, and it should be presumed that the marriage is invalid from its inception. At the same time, it should be presumed that marriage is not bound by administrative effect from the beginning. The latter kind of marriage "infringes" only a marriage relationship that is not protected by any law, which obviously loses the basis of bigamy, and certainly does not constitute bigamy. If the crime of bigamy is established, it is actually equivalent to acknowledging and recognizing the marriage relationship that has been declared invalid. In particular, the marriage law prohibits collateral blood relatives from marrying within three generations, and then determines that the latter marriage is bigamy, which is equivalent to allowing marriage to be prohibited, which is obviously against the law.
Verb (abbreviation of verb) can revoke the cognizance of the crime of marriage and bigamy.
(A) Revocable marriage system
The so-called revocable marriage refers to the system that the marriage registration authority or the people's court revokes the marriage according to law upon the application of the parties when the marriage is established. Article 11 of the Marriage Law stipulates that if a marriage is coerced, the coerced party may request the marriage registration authority or the people's court to cancel the marriage.
Understanding of the legal reasons of "coercion"; The so-called coercion is to give a party to a marriage spiritual coercion through intimidation, threats and other means, so that it cannot resist, that is, when the marriage is established, it completely violates the will of the parties. For example, hurting the parties and their relatives, exposing the privacy of the parties, damaging major property, and restricting personal freedom are enough to make the parties suffer mentally and physically.
Coercers may be the opposite of marriage. It may also be a third party, such as parents and relatives. The person who is threatened to kill may be a woman or a man. The coerced party may request the cancellation of the marriage, but it must do so within one year from the date of marriage registration. If the party whose personal freedom is illegally restricted wants to dissolve the marriage, it shall do so within one year from the date of restoring personal freedom. This year is the civil exclusion period, and the starting time is the marriage time determined by law, usually the time stipulated in the marriage certificate. This restriction can neither be extended nor suspended or interrupted. The right of revocation is entirely exercised by the coerced person. Here is "can" rather than "should", which means that the parties have autonomy and are not interfered by others. Marriage is also a contract, a special civil act, and even mixed with many emotional factors. In some marriages, one party is unwilling and coerced at first, but with the passage of time, such as having children and improving life, both parties will have feelings. If the parties do not ask for revocation within the statutory time limit, the marriage relationship will be recognized and protected by law. If one party fails to make a request for revocation within one year, it shall be deemed that he has given up his rights, and it is presumed that the marriage is legal and has legal reasons. If one party makes a request on time, the marriage will be declared invalid from the beginning, and both parties have no rights and obligations of husband and wife from the beginning. It is the marriage registration authority or the people's court that exercises the right to cancel the marriage, and the threatened party may request the marriage registration authority or the people's court to cancel the marriage.
(2) Bigamy in revocable marriage
Due to the incorrect nature of the effectiveness of the company's dissolution of marriage, whether the behavior of the parties constitutes the crime of bigamy is different.
1. The coercer is the opposite side of the marriage. Before the coerced person asks to dissolve the marriage within one year after marriage, it is uncertain whether the coerced person asks to dissolve the marriage, but the validity of the marriage certificate is constant and the spouse relationship of the coerced person has been clarified. If he marries someone else, it obviously violates the monogamous marriage system and meets the constitutive requirements of bigamy, which constitutes bigamy. The request for revocation made by the coerced person is only the dissolution of marriage in civil law. As for the coerced person who has not made a request for revocation, there is more reason to think that the behavior of the coerced person constitutes bigamy.
2. The coerced person may also constitute bigamy. According to the provisions of the Marriage Law, during the one-year exclusion period, the validity of the coerced husband is still valid. In the uncertain state, although the coerced person can exercise the cancellation right at any time during the one-year exclusion period, as long as the marriage certificate is not applied for cancellation and there is no actual announcement, the validity of the marriage certificate is constant, so the marriage should be presumed to be legal according to law. If the coerced person marries another person, it meets the constitutive requirements of bigamy and constitutes bigamy. However, those who are forced to get married, fail to establish marital feelings after marriage, insist on divorce, flee, and remarry with others should generally not be punished as bigamy.
3. On the issue of forced bigamy, if the previous marriage relationship is legal and valid, and one party is forced to bigamy with others, including legal bigamy and factual bigamy, the new marriage relationship should be revoked. For the coerced person, because he objectively violates the monogamous marriage system and subjectively has direct intention, whether he is a party to the crime of bigamy or not, and whether he has a marriage relationship or not, his behavior conforms to the constitutive requirements of the crime of bigamy and constitutes the crime of bigamy. If the coerced person does not intentionally commit a crime, it does not constitute bigamy. It should be noted that forced bigamy may involve rape, and if it involves rape, it should be convicted and punished for rape.
Similar to invalid marriage, before the revocable marriage is revoked according to law, the crime of bigamy committed by the parties can be convicted and punished according to the provisions of bigamy, but after being declared invalid, it will no longer have retrospective effect on the previous crime of bigamy.
Sixth, the punishment of bigamy
According to Article 258 of the Criminal Law of People's Republic of China (PRC), whoever commits this crime shall be sentenced to fixed-term imprisonment of not more than two years or criminal detention.