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 live together in the name of husband and wife without going through the marriage registration as stipulated in Article 8 of the Marriage Law shall be treated differently if they sue the people's court for divorce: (1) 1 February 19941day Ministry of Civil Affairs. (2) 1 February 19941day After the promulgation and implementation of the Regulations on the Administration of Marriage Registration of the Ministry of Civil Affairs, if both men and women meet the essential requirements for marriage, the people's court shall inform them to re-register their marriage before accepting the case; If the marriage registration is not completed, it shall be handled as the dissolution of cohabitation. "
There are three main types of bigamy: 1, registered marriage with spouse and registered marriage with others, that is, bigamy of 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 get a marriage certificate, all belong to this category. 2, registered marriage with the original spouse, but not registered with others but living together in the name of husband and wife and bigamy, this is the "de facto marriage type" (according to the marriage registration regulations, there is no so-called de facto marriage, but it is still treated according to the provisions of the Supreme Court). 3, no spouse, but knowing that the other party has a spouse and remarried with registered marriage or cohabitation 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. De facto bigamy refers to the fact that the previous marriage has not been dissolved and a de facto marriage has been formed with others. According to the relevant judicial interpretation, if a person with a spouse lives together 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, they should still be convicted and punished for bigamy.
China implements strict monogamy, and from the Criminal Law to the Marriage Law, corresponding punishment measures have been formulated for any spouse who violates the duty of loyalty, the most severe of which is bigamy.
This article mainly sorts out several misunderstandings about bigamy.
1. Is bigamy a public prosecution case or a private prosecution case?
According to the provisions of the Judicial Interpretation of the Criminal Procedure Law, if the procuratorate fails to prosecute the crime of bigamy, and the victim has evidence to prove that the spouse is bigamy, he can directly file a lawsuit with the court, and the court shall accept it according to law. If the evidence is insufficient and can be accepted by the public security organ, or if the court thinks that the defendant may be sentenced to more than three years' imprisonment, it shall be transferred to the public security organ for investigation.
Therefore, the crime of bigamy can take the path of criminal private prosecution, or it can be reported to the public security organ and prosecuted by the procuratorate. As long as there is a clear accuser 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 whether to take public prosecution or private prosecution. The difference is that as a private prosecution case, 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 the marriage certificate the only core factor for conviction?
The identification of de facto marriage is different in the field of civil law and criminal law. In the civil field, the de facto marriage after 1 February 19941day is not recognized, but in the criminal field, it is recognized.
This is because, in the criminal field, the Supreme Court has made a clear reply: "After the promulgation and implementation of the new Regulations on the Administration of Marriage Registration (1 February 19941Japan), people with spouses who live together with others in the name of husband and wife, or those who know that others have spouses and live together with them in the name of husband and wife, should still be convicted and punished for bigamy."
In other words, 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 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 don't get marriage certificates or hold weddings. Rich people "keep" lovers, and corrupt officials keep "mistresses" and "mistresses" one after another, but few people are investigated for bigamy crimes.
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 death with a reprieve for six crimes: corruption, bribery, embezzlement of public funds, bribery by the unit, abuse of power and bending the law. There is no bigamy 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. The other person is Jiang Ming, secretary of the former district committee of Nanjing Lishui.
This also shows from the side that it is difficult to prove that one of the defendants lives together in the name of husband and wife. But perhaps, we can get some clues from the case of Qiu Xiaohua, 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 baby father, and the woman filled in the column of "relationship between two people" as "husband and wife". In the future, if you want to accuse the unfaithful spouse of bigamy, you can first find out if the other spouse has an illegitimate child. Try to find out if the other party has signed in the name of the father on the documentary evidence such as the birth medical record of the illegitimate child.
The crime of bigamy refers to the act of marrying another person with a spouse or knowing that another person has a spouse. The following is the criteria for determining the crime of bigamy in 20 17 years compiled by mobile notarization. Welcome to read it.
Criteria for determining the crime of bigamy in 20 17 years
First, the determination of the crime of bigamy
The crime of bigamy refers to the act of marrying another person with a spouse or knowing that another person has a spouse. The so-called spouse means that a man has a wife and a woman has a husband, and 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 person with a spouse. The so-called marriage with others, including those who fraudulently register for marriage and those who live together as husband and wife without marriage registration. The so-called marriage knowing that someone else has a spouse means that although I don't have a spouse, I know that the other person has a spouse and deliberately marry him (including registered marriage or de facto marriage). This kind of behavior is an act of intentionally destroying the marriage of others.
(A) the object elements of bigamy crime
The object of bigamy is monogamous marriage. Monogamy is a principle stipulated in China's marriage law. Bigamy has destroyed China's socialist marriage and family system and must be punished criminally.
(B) objective elements of bigamy crime
The crime of bigamy objectively shows that the actor must have bigamy. That is, a person who has 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, and 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 person with a spouse. The so-called marriage with others, including those who fraudulently register for marriage and those who live together as husband and wife without marriage registration. The so-called marriage with others knowing that they have a spouse means that although I have no spouse, I knowingly marry the other person (including registered marriage or de facto marriage). This kind of behavior is an act of intentionally destroying the marriage of others.
(C) the main elements of bigamy crime
The subject is the general subject. First, the person who has a spouse has established 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.
(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 does not really know that the other spouse has a spouse and marries him or lives with him in a husband-and-wife relationship, the spouse without a spouse does not constitute bigamy, while the spouse with a spouse does.
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 crime
(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 has seriously violated the personal rights of the innocent party, hindered and destroyed the safety of marriage and family, and has certain social harm. Therefore, the criminal laws of many countries have determined that bigamy is a criminal act that should be punished by punishment. China's current criminal law clearly stipulates that bigamy is a crime against personal rights that should be punished by criminal law. China's Marriage Law adapts to the current criminal law and clearly stipulates in Article 45: "Those who commit bigamy shall be investigated for criminal responsibility according to law".
However, in real life, it is by no means easy for the law to put criminal punishment on bigamy in place, which is manifested in the fact that it is difficult to implement the criminal punishment on de facto bigamy and the punishment on concubinage is pale and powerless. 1999 There were only about 10 cases of bigamy judged by the two-level courts in Guangzhou, which was extremely disproportionate to the large number of serious cases of bigamy in disguised form in society, resulting in most de facto bigamy not being investigated by criminal law.
(2) Civil liability
1, based on the fact that bigamy, concubinage in disguised form, and the involvement of a third party are violations of the loyalty obligations of husband and wife, which seriously infringe on a series of spouse rights such as the right to live together and the right to keep chastity of the innocent party. Therefore, it is decided that the law should not only give criminal punishment to bigamy, but also bear punitive compensation liability to the innocent party. Criminal punishment of bigamy is the means, and the purpose is to protect the marriage and family rights of the innocent party. Therefore, the marriage legal system should set up a compensation system for the innocent party, and it is clearly stipulated in legislation that the innocent party should be compensated for the damage caused by bigamy. Item 1 of Article 46 of the Marriage Law of China stipulates: "If divorce is caused by bigamy or cohabitation of a spouse 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 for the innocent party and punitive for bigamy.
2. In divorce proceedings, if the divorce is really caused by the breakdown of marriage relationship caused by bigamy, the bigamist and the married person shall be jointly and severally liable for compensation to the innocent party. Since modern times, the rights and interests of marriage and family in many countries have stipulated that as long as there are legal reasons for divorce, including bigamy, adultery, abandonment and so on, the fault party should bear the liability for damages. In this regard, China's Marriage Law reasonably draws 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 to set up the system of damages in China's marriage legal system, which marks the further improvement of the civil liability system in the field of marriage and family in China.
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: knowing that your existing marriage relationship has not been dissolved and marrying others, or knowing that others have a spouse and marrying them.
(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 the criminal object and the criminal object.
(3) The objective aspect of the crime of bigamy is that bigamy violates the fundamental marriage system of monogamy and implements the overlapping marriage behavior. That is, at the same time, bigamy has two marriage relationships, and whether the former marriage relationship is legal or not does not affect the constitution of bigamy crime.
(4) In judicial practice, the former marriage is illegal and the later marriage is "legal", which is a means adopted by bigamists to evade legal sanctions under the new situation and a new manifestation of bigamy crime.
The constitutive elements of the crime of bigamy;
1, the object of infringement is monogamy as stipulated in China's marriage law.
2. Objectively speaking, the actor must have bigamy, that is, the person who has a spouse marries another person, or marries him knowing that he has a spouse. There are two cases of bigamy in practice: 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 implementation 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 the general subject. First, the person who has a spouse establishes a marriage relationship with others during the existence of the husband-wife relationship. Second, the person who has no spouse marries the other person knowing that he has a spouse.
4. Subjective aspect is direct intention. If a spouse conceals the truth, so that the spouse without spouse is deceived and married, or if he is not married, he still marries others knowing that they are married, which constitutes bigamy. Marrying someone without a spouse is the first time for him, but marrying someone knowing that they have a spouse violates monogamy and becomes the crime of bigamy.
First of all, it is explained 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. The marriage law does not recognize de facto marriage. If you have already obtained a marriage certificate, the possibility of obtaining a marriage certificate is very small.
Secondly, even if there is a phenomenon of long-term cohabitation with a spouse, as long as they do not live together in the name of husband and wife, it does not constitute bigamy. It's usually just moral condemnation.
Thirdly, knowing that someone else has a spouse and marries him is very unlikely in reality. It is basically necessary to let him divorce first, commonly known as the third wife, but this does not belong to the category of bigamy.
(1) The concept and constitution 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, and the object of this crime is a monogamous marriage relationship. 2. The objective aspect of this crime is the act of marrying others with a spouse or knowing that others have a spouse. 3. The subject of this crime, because the crime of bigamy has the characteristics of antithesis (even), a single person cannot constitute it. Therefore, the subject of this crime is two kinds of people: one is bigamy. The second is the married person. 4. Subjectively, this crime is intentional, which is manifested as follows: First, people with spouses marry others knowing that they have a spouse. Second, a person without a spouse marries someone knowing that they have 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. Its explanation is: register marriage with others while knowing each other or having a spouse. Then the question comes: how to determine? Is it proved by facts or by marriage certificate? If it is proved by a marriage certificate, how did the spouse get the marriage certificate again? The responsibility of the issuing authority? So the legal provisions are not clear.
How unclear the marriage law is, a woman is a mistress, and a man finds a mistress to be a discord. After the divorce, the child's support is mentally injured at the age of 18. There is no legal standard. Can you add provisions? No, it is illegal for many orphans to grow up ..., to help the orphan families all over the country, and to be happy in the future.
There is a case in which two people got married in 1985 (because the woman was not old enough to register and get a license), gave birth to her first child in 1988, gave birth to her second child in 1996, and gave birth to her third child in 2002. It has been more than 31 years since this year, and they have been living together in the name of husband and wife. However, they have never gone to the civil affairs bureau to go through the marriage registration formalities. At the beginning of the year, the woman secretly registered and got a license with a foreigner, and returned home once a month.
Nowadays, many people have problems with their outlook on life, especially men. Many men around us talk about family, then look for mistresses outside, and often take them out to eat together. It's disgusting. They have the reputation 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 a mistress who destroys other people's families, which is a crime. Otherwise, people in this society will have less and less three views.