"Marriage cooling-off period" needs to be treated calmly
Experts say that we should consider restoring the mandatory premarital inspection system
□ Reporter Zhao Chenxi
"Is it necessary to establish a marriage cooling-off period?"
Recently, this topic detonated the Internet. After the "cooling-off period for divorce" was written into the Civil Code, the "cooling-off period for marriage" was also mentioned and quickly rushed into hot searches.
On January 14, the Shanghai Bar Association held the “2021 Shanghai Lawyers’ Participation in Politics Press Conference”. Xu Shanshan, a member of the Shanghai Municipal Committee of the Chinese People’s Political Consultative Conference and a partner of Shanghai Zhong Lun Law Firm, said at the press conference that she planned to participate in the Shanghai CPPCC this year. Proposals were submitted at the meeting, suggesting that the spouses' right to know before marriage should be protected, pre-marital medical examinations should be advocated, and the establishment of a marriage registration objection period should be explored, that is, the spouses should be given the right to know about information disclosure before marriage registration takes effect.
"It is very necessary to understand the true information of both parties before marriage. Otherwise, the marriage will be invalid. Can we set a cooling-off period for marriage to protect the right of both parties to know?" Xu Shanshan believes that the information of both parties is symmetrical and information is transparent. One way to reduce the divorce rate.
Xu Shanshan’s proposal was interpreted by the media as a "marriage cooling-off period" and received support from many netizens. Some netizens said that they had very good personal information about each other’s physical condition, marriage history, and criminal record before marriage. Necessary, "it is recommended to be clarified through national legislation."
However, some netizens believe that both parties to the marriage registration are adults, and it is good to be responsible for their own choices, and no additional threshold should be set.
Marriage registration opposition period guarantees the right to know
The Meilong People’s Court of Shanghai’s Minhang District People’s Court recently annulled a marriage in accordance with the Civil Code because the defendant was an AIDS patient, but he did not confess to the plaintiff before getting married.
According to the law, AIDS is not a disease that causes invalid marriage. However, Article 1053 of the Civil Code stipulates that if one party suffers from a serious illness, he should truthfully inform the other party before marriage registration; if the other party is not informed truthfully, the other party You can request the people's court to cancel the marriage.
It can be seen that AIDS patients can get married, but the premise is that the spouse must know and agree.
Such cases are not uncommon. Xu Shanshan believes that this is related to the lack of sufficient information on both sides before marriage, which also gave her the idea of proposing to establish an opposition period for marriage registration.
"If an opposition period is set up for marriage registration, you can refuse to complete the marriage registration if you discover that the opponent has concealed important information from yourself during the opposition period. This will avoid the trouble of going to the court after getting married, saving time and trouble, and saving money. Judicial costs." Xu Shanshan admitted in an interview with reporters that her proposal is to explore the establishment of a marriage registration opposition period. Many media directly interpret the marriage registration opposition period as a "marriage cooling-off period", which is not entirely accurate, because the term is actually "Between registration and entry into force, insert a period of information and investigation."
"The focus of my proposal is the'right to know' before marriage registration." Xu Shanshan gave an example. For example, an investigation period can be set between the registration of the marriage and the registration becomes effective, and the other party is required to disclose their personal information to both parties. Investigate information and fully understand the rights of the other party.
Both parties can discuss and reach a consensus on which items are listed as investigable items before the registration takes effect. Items that should have the right to investigate and know can include the other party's marriage history, medical history, debt status, family situation, etc.
If it is consistent with what the other party said after verification, the marriage registration will automatically take effect; however, if one party finds that there is no match, then the other party has the right to choose whether to continue to complete the registration or not, the right to decide is still The parties, this is not mandatory by law, but it gives both parties the right to know.
"I hope you don't come together because you don't understand, and you separate because you understand." The original intention of Xu Shanshan's proposal is to hope that the information of the two parties before marriage can be symmetrical, so that both parties can get married clearly.
No need to rely on legislation to establish pre-procedures
Different from the attitude that some people agree with the marriage cooling-off period, Zhang Jing, the deputy director of the Marriage and Family Law Professional Committee of the Beijing Lawyers Association and the director of the Marriage and Family Department of Beijing Lianggao Law Firm, has some " "Disgust", I think this statement is "crushing" the heat of the divorce cooling-off period.
Regarding the marriage registration system, the Civil Code has added a 30-day divorce cooling-off period system, which clarifies that within 30 days from the date when the marriage registration authority receives the divorce registration application, any party who is unwilling to divorce can withdraw it from the marriage registration authority Divorce registration application.
"The establishment of a divorce cooling-off period system through legislation is to prevent impulsive divorce in an agreed divorce. It has positive meaning, but the establishment of a so-called marriage cooling-off period is'not necessary'." Zhang Jing accepted the "Rules of Law Daily" During the interview, the reporter emphasized that the freedom of marriage belongs to every citizen’s private right. Public power should not be excessively involved in private affairs. Legislation should not interfere too much with the private rights of others, and the seriousness of legislation should not be transformed into life. It is the last resort to solve the problem.
Lv Xiaoquan, deputy director of Beijing Zhongze Women’s Legal Advisory Service Center, agrees. He believes that the freedom of marriage should not impose any additional restrictive conditions. It is their freedom to choose between the parties. Of course, the corresponding risks and consequences are also subject to Both parties bear the responsibility, and the law also provides corresponding remedies.
Lv Xiaoquan introduced to a reporter from the Rule of Law Daily that in the Civil Code, the right of both parties to know about major diseases is achieved by one party actively fulfilling the obligation of notification.
"The reason why the law is designed in this way is to take into account that the two parties preparing for marriage registration have not yet established statutory rights and obligations between the two parties before the actual marriage registration." Lu Xiaoquan further explained that the Civil Code therefore provided for ex post relief. , If one party suffers from a major illness before marriage and fails to tell the truth, the other party can request the cancellation of the marriage and demand compensation.
In Lu Xiaoquan's view, it is improper for the law to directly establish a pre-procedure before marriage. The government should guide the people to establish a correct and positive concept of marriage and family, and take corresponding knowledge popularization, publicity and education measures for this.
Zhang Jing can understand that the proposal to establish an objection period for marriage registration is to hope that both parties can have more information to prevent people entering the marriage from being deceived.
But she worries that a good original intention may be "biased" in its implementation. For example, some people may see it as a way to pry into the privacy of the other party; some people think that there is a system that can "calm down" and repent before getting married. When deciding on marriage registration, it will be more hasty, which will have a bad effect.
Zhang Jing suggested that from a social perspective, pre-training and psychological counseling should be provided for both parties who will enter the marriage palace through the community or the civil affairs department. One is to let them know the meaning of marriage and establish the responsibilities for marriage. Develop a correct concept; the second is to teach them how to conduct necessary premarital investigations to avoid being deceived.
In addition, Zhang Jing reminded that even if a non-mandatory marriage registration opposition period is set to allow both parties to express some necessary information before marriage registration, they must pay attention to the issue of privacy protection.
For example, if the other party has a criminal history, this is public and does not belong to the category of privacy.
However, whether there is a history of mental illness, whether there is a history of genetic diseases, whether there is a history of infectious diseases and other diseases, and the marriage history of the other party, these all involve personal privacy. Even if they know, they have no right to disclose to outsiders and the society, otherwise they will be suspected of breaking the law.
Experts suggest restoring mandatory premarital inspection system
Li Mingshun, the vice president of the Marriage and Family Law Research Association of the Chinese Law Society, has also been following discussions about the marriage cooling-off period recently. He found that Xu Shanshan's advocacy of pre-marital medical examinations has been ignored by many people.
"A large number of cases where marriages are cancelled after marriage are because one party concealed his illness before marriage. This is actually completely avoided by the mandatory premarital examination system." Li Mingshun has been advocating the restoration of the mandatory premarital examination system for many years.
He told reporters that my country used to have a mandatory premarital examination system. Article 12 of the "Mother and Child Health Law of the People's Republic of China" that was implemented in 1995 clearly requires that both men and women should hold a pre-marital medical examination certificate or medical appraisal certificate when they register their marriage.
However, in the "Regulations on Marriage Registration" implemented in 2003, the premarital examination report is no longer a necessary part of registering a marriage, which has also led to a decrease in the rate of premarital examinations year by year.
"I think it is necessary to restore the mandatory premarital inspection system." Li Mingshun pointed out that from a legislative perspective, according to the legislative law, the maternal and child health law is more effective than the "Regulations on Marriage Registration." Conflict, the lower law conflicts with the higher law, and the higher law should be obeyed.
He proposed to amend the "Marriage Registration Ordinance" to add mandatory pre-marital medical examinations.
Before the relevant laws and regulations are revised, the pre-marital medical examinations should be standardized, or free pre-marital examinations should be promoted.
Zhang Jing also believes that we should consider restoring the mandatory premarital inspection system.
She feels that the two parties who are preparing to get married are too contemptuous of the pre-marital examination. In fact, the pre-marital examination not only covers the screening of infectious diseases such as AIDS, hepatitis B, and syphilis, but also includes some reproductive system diseases. These tests can find out whether there is infertility. Childbearing or suffering from a genetic disease can prevent the trouble before it is an important part of the registration of marriage.
In Li Mingshun's view, the resumption of mandatory premarital inspections may be more maneuverable than setting a period of opposition to marriage registration.
"After all, for the civil affairs department to cooperate in investigating the health status of both parties requires both legal authorization and the cooperation of other departments. If both parties are required to provide a marriage check certificate to register the marriage, it will be better to operate, and it will also ensure that both parties are informed about each other’s health. Right." Li Mingshun said.