Compulsory or voluntary premarital examination
How to protect young people's right to know about marriage
China Youth Daily and China Youth Daily reporter Li Chao, intern You Qiang Lu
Two years ago, Cheng Xueyang, deputy dean of Soochow University's Wang Jian Law School, directed a master's thesis to be "killed".
The dissertation of this master's research is concerned with the premarital examination system.
However, experts in external review of dissertations believe that the issue of premarital inspection has been changed to voluntary in 2003, and no one in the legal community has conducted research on this issue in the past 10 years.
Therefore, this topic was regarded as "burning a cold stove", nothing new, and not worthy of study, and finally the master's thesis was "killed".
The so-called compulsory premarital examination system is stipulated by the Maternal and Infant Health Law that came into effect on June 1, 1995. Article 12 of the law clearly stipulates that “both men and women shall hold a pre-marital medical examination certificate or a medical appraisal certificate when registering their marriage”, and This provision has been retained after the second amendment of the Maternal and Child Health Law on November 4, 2017.
The Marriage Registration Regulations promulgated by the State Council in 2003 no longer require parties applying for marriage registration to "submit a pre-marital medical examination certificate".
But the Maternal and Child Health Law has not been repealed.
In fact, behind the dissertation topic selection disputes are legal and regulatory disputes.
A few days ago, Cheng Xueyang, deputy dean of the Wang Jian Law School of Soochow University, told China Youth Daily and China Youth Daily that the provisions of Article 5 of the "Regulations on Marriage Registration" promulgated in 2003 were inconsistent with the provisions of Article 12 of the Maternal and Child Health Law.
The controversy has been going on for 19 years.
So far, the legal circle is still divided.
The necessity of compulsory premarital examination reflected in the case
In 2019, Wu Zhi, a graduate student at the Wang Jian Law School of Soochow University, discovered many cases that occurred due to failure to conduct premarital examinations during his studies.
Zhang Lan and Wang Yong (both pseudonyms) are a newlywed couple in Beijing.
Before getting married, Zhang Lan didn't ask for a premarital examination because she couldn't save face and was afraid that her lover would feel that she didn't trust each other.
Shortly after the marriage, Zhang Lan discovered that Wang Yong actually suffered from sexually transmitted diseases such as condyloma acuminatum.
Unhappy Zhang Lan filed for divorce.
She believes that Wang Yong concealed the fact that he suffered from a disease before marriage.
Therefore, the marriage of both parties is void.
On June 30, 2020, the Beijing Higher People's Court issued a civil ruling on the application for retrial of the concluded marriage invalidation dispute.
In the end, the Beijing Higher People's Court rejected the plaintiff's request.
Cheng Xueyang told Wu Zhi that if the mandatory premarital examination is not carried out, both parties in the marriage will not be able to know the true physical condition of the other party.
In the future, if you insist on divorce when you know it, it will be difficult to prove that the other party must have contracted the disease before marriage.
"It is extremely difficult to produce evidence, and it is easy for the request to be rejected."
In addition, Wu Zhi also found that the "marriage radius" of relatives and friends around them continued to expand when they got married, and marriages across counties, cities, and provinces appeared in large numbers.
If there is no premarital examination, it is difficult for both men and women to know the real situation of each other's body.
And when it comes to premarital examination, many people still have scruples.
"What if you don't trust each other and break up?" Wu Zhi said.
As early as 2005, Shanghai began to implement "free voluntary premarital medical examinations", but the premarital examination rate in the city in 2020 is only 13.2%, and nearly 7/8 of newlyweds have not undergone premarital medical examinations. - During the implementation of the mandatory premarital examination system in 2002, the city's average premarital examination rate was 98%.
Cheng Xueyang believes that it is necessary to restore the establishment of the compulsory premarital examination system, the function of which is to "guarantee the right to know, the right to health and the right to life of the parties who intend to conclude a marriage".
He believes that the compulsory premarital examination system guarantees the right of both parties to the marriage.
In the traditional "acquaintance society", the parties who intend to get married can conduct effective background investigations through relatives, friends, acquaintances, matchmakers, etc., but after entering the modern stranger society with rapid population flow, the traditional marriage background investigation mechanism is becoming more and more difficult. function effectively.
In addition, Cheng Xueyang introduced that the Civil Code, which will be implemented in 2021, abolished the situation of marriage invalid due to serious illness, and replaced it with the obligation to notify before marriage in Article 1053, giving the parties the right to revoke the marriage.
"As a result, the remedy for violation of the pre-marital notification obligation is limited to revocation after marriage, and there is no pre-marital protection." Cheng Xueyang said that in this case, one party directly proposes to the other party for a pre-marital medical health examination, which may cause the latter to have a problem. Feelings of being distrusted or even offended.
Because of this, many parties are unwilling or afraid to ask each other for a pre-marital medical examination.
Premarital examination disturbance
In Xiangzhou District, Zhuhai City, Guangdong, Chu Chu (pseudonym), who was born in 1987, encountered related problems.
It turned out that when she and her husband Jiang Xu (pseudonym) got married, the local civil affairs department did not force them to conduct a pre-marital examination.
Because she really liked her husband, Chu Chu did not propose a premarital examination.
After the marriage, Chu Chu discovered that Jiang Xu may have a mental illness that is not suitable for marriage.
Unable to bear her husband's illness, Chu Chu chose to divorce.
According to the Maternal and Infant Health Law, Chu Chu believes that the relevant departments should conduct compulsory pre-marital examinations for the two.
Later, she took the civil affairs department to court.
After being dismissed in the first instance, Chu Chu sued again.
In 2019, the Guangdong Higher People's Court heard the case.
The Higher People's Court of Guangdong Province rejected Chu Chu's application in accordance with the "Regulations on Marriage Registration".
They believe that before marriage, Chu Chu filled out the "Declaration of Application for Marriage Registration", which includes understanding the physical health of the other party.
Therefore, Chu Chu should understand the real situation of the other party.
Cheng Xueyang introduced that Article 49 of my country's Constitution stipulates that "it is forbidden to destroy the freedom of marriage", and it also stipulates that "marriage, family, mother and children shall be protected by the state".
He believes that this provision means that the state is obliged to protect marriage, rather than simply letting citizens bear risks and other adverse consequences in the name of "freedom of marriage".
Therefore, he believes that the state is obliged to conduct free compulsory pre-marital examinations, and the citizens should not be allowed to bear the risks and adverse consequences on their own.
Later, Cheng Xueyang and Wu Zhi checked the relevant information in detail.
They also found that there are many similar "legal turmoil".
In the past 19 years, the mandatory premarital examination has experienced large and small disputes: "In Heilongjiang Province, this controversy is more obvious."
The Standing Committee of the Heilongjiang Provincial People's Congress revised the "Heilongjiang Maternal and Infant Health Care Regulations" in 2005, which set completely opposite legal rules to the "Marriage Registration Regulations" promulgated by the State Council in 2003.
Articles 8, 11, and 50 of the "Heilongjiang Maternal and Infant Health Care Regulations" clearly stipulate that "this province implements a pre-marital medical examination system. Both men and women who are planning to get married shall receive pre-marital medical examination and pre-marital health education. The registration authority handles marriage registration" "The marriage registration authority shall check and keep the pre-marital medical examination certificate of both parties when handling marriage registration" "The staff of the marriage registration authority, when handling the marriage registration, fails to check the pre-marital medical examination certificate of the parties concerned. Those who are registered shall be given administrative sanctions by the unit to which they belong or the relevant competent department.”
It is worth noting that after the revision of the "Heilongjiang Maternal and Infant Health Care Regulations" was completed, the civil affairs department of Heilongjiang Province at that time publicly stated that the civil affairs department did not know in advance that the "Heilongjiang Province Maternal and Infant Health Care Regulations" would be revised, and the regulations did not reflect the civil affairs department. Opinions and attitudes, its feasibility is questionable.
If the civil affairs department implements compulsory premarital examination, the parties to the marriage have the right to sue the civil affairs department in accordance with the "Regulations on Marriage Registration".
The health department of Heilongjiang Province believes that the "Heilongjiang Maternal and Infant Health Care Regulations", as a subordinate law of the Maternal and Infant Health Care Law, has legitimacy, and the compulsory premarital examination system has not been abolished and should not be abolished.
Some experts pointed out that the "Heilongjiang Maternal and Infant Health Care Regulations" did violate the "Marriage Registration Regulations", but the "Marriage Registration Regulations" violated the Maternal and Infant Health Care Law.
Cheng Xueyang said that judging from the situation in Heilongjiang Province, the "Heilongjiang Maternal and Infant Health Care Regulations" have been amended six times so far, and the relevant provisions of the mandatory premarital examination system are still retained.
In addition, during the National People's Congress in 2009, 2014 and 2019, at least five deputies to the National People's Congress put forward relevant suggestions respectively, calling for the restoration and optimization of the compulsory premarital examination system.
How to do it for both parties?
Cheng Xueyang believes that if the parties still choose to marry the other party if they know that the other party has some physical problems, it is a manifestation of the pursuit of love, and the law should protect it.
Cheng Xueyang believes that prenatal and postnatal care should not be the reason for insisting on compulsory premarital examination.
The results of the premarital examination should only be seen by individuals, and the relevant departments cannot see the results of the examination. "Because this is the privacy of both parties, there is no guarantee of prenatal and postnatal care."
A few days ago, the reporter found during an interview at the Marriage Registration Office of the Dongtai Civil Affairs Bureau, Yancheng, Jiangsu, that the third floor of the Civil Affairs Bureau provides free premarital inspection services.
"It's not mandatory, but we provide this free service to both men and women." Chang Le, a staff member of the marriage registry, said.
"It's good for both parties, and there will be no problem of losing face." This is the answer of many young people when facing the camera.
However, they are also worried about whether their privacy will be leaked to others.
"The staff will see the report of our physical condition, which is what we are most worried about." said a young woman who is about to receive a certificate.
In May of this year, when a reporter from China Youth Daily and China Youth Daily conducted a street interview on the issue of compulsory premarital examination in Gulou District, Nanjing, many young men and women believed that compulsory premarital examination should be carried out. This system makes both parties very secure.
In this regard, Cheng Xueyang emphasized that the compulsory pre-marital examination system established by Article 12 of the Maternal and Infant Health Care Law is that "both men and women shall hold a pre-marital medical examination certificate or a medical identification certificate when registering their marriage", rather than requiring the civil affairs department to A medical examination certificate or a medical appraisal certificate shall be used to decide whether the parties can get married.”
Cheng Xueyang explained that according to this regulation, as long as the parties hold a pre-marital medical examination certificate or a medical appraisal certificate, the civil affairs department should, in principle, allow the parties to marry in accordance with the law.
On May 6, 2021, Cheng Xueyang's research group submitted a "Proposal on the Filing Review of Article 5 of the "Marriage Registration Regulations" to the Filing Review Office of the Legislative Affairs Commission of the Standing Committee of the National People's Congress by express. Free compulsory pre-marital examination within the scope.
On January 7 this year, the Regulation Filing Review Office of the Legislative Affairs Committee of the Standing Committee of the National People's Congress responded to their suggestions.
The reply stated that the certification materials that should be issued for marriage registration stipulated in the "Regulations on Marriage Registration" of the State Council do not include the certificate of pre-marital medical examination.
Some citizens put forward suggestions for reviewing this provision, arguing that this provision is inconsistent with the provisions of the Maternal and Child Health Law that marriage registration should hold a pre-marital medical examination certificate.
The reply emphasized that the review held that since the implementation of the Marriage Registration Regulations in October 2003, premarital medical examinations have in fact become a voluntary act of citizens; It is stipulated that one party conceals a serious illness as the circumstance that the other party can request to revoke the marriage, and "suffering from a disease that medically thinks should not be married" is no longer stipulated as a circumstance that prohibits marriage.
They will communicate with the relevant departments of the State Council to promote the timely overall revision and improvement of relevant laws and regulations in accordance with the spirit of the Civil Code.
China Youth Daily, China Youth Daily reporter Li Chao, intern You Qiang Lu Source: China Youth Daily