Who is defending “love”

  There is a proverb in the West that says “three things” that the law doesn’t care about: old things, trivial things, and internal things. Among them, ignoring the past is easier to understand. It is the spirit of “the law does not go back to the past” today.
  But the other two things are very strange to people today.
  First, “regardless of internal affairs.” In the past, “internal” had internal regulations, such as guilds, religious associations, and so on. Or, there are authoritative agents of autonomy within the clan, such as the head of the clan, etc. Therefore, the law needs to be cautious when intervening in the “internal”.
  Regardless of trivial matters, it means that the law is concerned with general matters, and it does not restrict the private behavior of individuals. For example, in the well-known “The Merchant of Venice”, Sherlock’s “one pound of meat” contract is a private agreement between him and the parties. Although it is obviously unethical, the law will not restrict it.
  Regarding trivial and internal matters, there is an overlapping “outside the law” between the “two no matter”, that is, the field of family life-it is obviously internal, and it can be seen from today’s perspective. Look, the small family is more of the “inside” of the family. On the other hand, disputes in family life, apart from criminal offenses that cause serious consequences, are almost “trivial,” difficult to obtain evidence, difficult to investigate, and costly to intervene, but the social benefits are close to zero—of course in ancient times. .
  Under deliberate circumvention, the legal protection of personal rights in ancient marriages is naturally impossible to talk about. Fortunately, we were not born in ancient times.
From the beginning of marriage

  The Western proverb’s “no matter what you do” is easy to find in Chinese proverbs, that is, the famous “clean official is hard to cut off housework.”
  Everything has its origins. Family and housework are “difficult” because they are in an awkward position: the family is the smallest unit of social operation, and the “group of self-rights” in it is not clear. The society’s concept of “one body and one heart” for husband and wife has further confused the definition of rights and responsibilities within the family.
The 1950 version of the Marriage Law stipulated “equality of rights for men and women” was pioneering. It breaks the concept of “one body and one heart” in old-style marriages and the “internal” nature of the family as a whole.

  It is “difficult to judge”, not constant, but the ancient civil servants’ handling of family disputes cannot be detached from considerations of etiquette and clan interests. The tragedy of “the peacock flies southeast” brings tears, and later generations will have “Blessings of Love”. More than “Southeast, Northwest”? Many are endless mandarin ducks with no branches to roost.
  The orders of the parents and the words of the matchmaker made the parties involved in the marriage lose their autonomy. On the other hand, in marriage, you can’t help yourself. In the famous story “The Calabash Monk Judging the Calabash Case” in “Dream of Red Mansions”, Xiangling came with all the hardships, and originally married Feng Yuan, but Xue Pan took her away as a concubine. Since no one decides as an orphan, she can only “marry a dog and follow a dog”.
  If you open a brain hole and Xiangling is protected by modern law, then, according to the principle of freedom of marriage and the relevant regulations, the marriage between her and Xue Pan is obviously invalid and should be revoked. This is too simple for modern people to solve the problem.
  However, if this is really the case, Xiangling will have to wait 215 years after the book “A Dream of Red Mansions”-the first “Marriage Law” of New China was promulgated in 1950.
  From then on, marriage in the modern sense of China began to take shape. Since then, the Marriage Law has been revised several times, and we can see the changes in the Marriage Law and the development of the social reality behind it.
  The first “Marriage Law” focuses on abolishing feudal customs, and its style is obviously different from today’s law. There are only 27 provisions in the entire law. Among them, there are two provisions in the “Principles” chapter. The original text is as follows:
  Article 1: Abolish the feudal marriage system of arranged coercion, male superiority, inferiority to women, and disregard of children’s interests. Implement a new democratic marriage system featuring freedom of marriage for men and women, monogamy, equal rights for men and women, and protection of the legitimate rights and interests of women and children.
  Article 2: Bigamy and concubine are forbidden. Child brides are prohibited. It is forbidden to interfere with the freedom of marriage of widows. It is forbidden for anyone to claim property through marriage relations.
  Each item in the regulations is obviously a “targeted aim” for feudal ethics. There is a school of opinion that the “principle” part of the law is usually just empty rules and will not solve practical problems. But in civil law, this certainly cannot be established.
  After several revisions to the draft of the marriage law, Wu Changzhen, an important drafter of the marriage law, once said that the general principles of each law are declarative. It does not solve specific problems by itself, but is a guide.
  For the 1950 version of the Marriage Law, the provisions of the “Principles” chapter are mostly to eliminate feudal bad habits. Among them, the provisions of “equal rights for men and women” are pioneering. It breaks the concept of “one body and one heart” in old-style marriages and the “internal” nature of the family as a whole. “The law ignores internal matters” and has since become invalid for the family.
  In other words, starting from this marriage law, the family is no longer an absolute unit, it sees individual people.
Divorce, are you “calm down”?

  The Irish writer Wilde has a famous saying. He said: “The biggest cause of divorce is marriage.”
  This is almost nonsense, but it is quite meaningful: after “human rights” and “equal rights” have been implemented by law, old marriages Morality is broken, but with new marriages and free choice, can people live better?
  This is another version of “After Nora leaves” question. After the individual has been liberated, what choice should he make when facing the huge world?
  The power of traditional culture cannot be dissipated overnight, and it remains stubbornly attached to the individual. In China, the marriage law and the reality it faces have undergone a slow process of change.
  Although the freedom of marriage falls into the “principle” chapter, divorce is never a simple matter. The Marriage Law of 1950 stipulates that if a man and a woman get divorced voluntarily, both parties shall register with the district people’s government and obtain a divorce certificate; the district people’s government shall issue a divorce certificate immediately when the district people’s government finds that it is voluntary and that the children and property issues are properly handled.
  Voluntary divorce between the two parties is “the most ideal divorce”. However, the situation is much more troublesome for “a man and a woman requesting a divorce.”
  The Marriage Law of 1950 stipulates that if the man and woman insists on a divorce, the district people’s government shall conduct mediation; if the mediation is invalid, it shall be reported to the county or city people’s court for handling; the county or city people’s court shall also conduct mediation first in divorce cases ; If the mediation is invalid, a judgment shall be made.
  From the point of view of the provisions, this type of divorce must go through two rounds of mediation, and it must be judged by the “government-court”. The time spent in it is expected to be no longer than the current “30-day divorce cooling-off period”. short.

  The law belongs to the law, and reality has another aspect. Wu Changzhen once recalled that in his early years, strange women often knocked on the door of their own house, and fell to the ground with a “plop” without saying a word. “The reason is that her husband abandoned her, and she is unwilling to divorce.”
  Under the influence of traditional culture, individuals experience great social pressure after divorce, which is particularly evident in divorced women. In fact, “Do you want to get a divorce after a couple broke up?” The question that seems funny today has been seriously considered in the past.
  The Marriage Law passed a new law in 1980. This version of the law finally clearly stipulates in Article 25: “If the relationship is indeed broken and the mediation is invalid, a divorce shall be granted.” Wu Changzhen once recalled that in his early years, “divorce is not a divorce”. The phenomenon of women seeking help gradually disappeared.
The Marriage Law passed a new law in 1980. This version of the law finally clearly stipulates in Article 25: “If the relationship is indeed broken and the mediation is invalid, the divorce shall be granted.” In the early years, women who “died without divorce” came to seek help. , And then gradually disappeared.

  It can be said that it was the law’s loosening of divorce, which reduced it from a “life event” to the normal phenomenon of “divorce if the relationship broke down”, which finally realized the loosening of people’s thoughts.
“Duty of loyalty”

  After 1980, China’s economy began to take off. In the following 40 years, social reality has undergone subversive changes-the family, as a small unit of economic activity, has also undergone drastic changes during this period. Of course, the law followed suit.
  The Marriage Law was revised in 2001. Compared with the version promulgated in 1980, the “General Provisions” chapter has a conspicuous change. Article 4 of the General Provisions stipulates that “couples should be loyal to each other and respect each other.”
  The “General Principles” and the “General Principles” have the same essence and are located in the first chapter of the law. As mentioned above, they are a guide of the law.
  Behind the orientation is part of the social chaos observed by the legislature and legal drafters. In the process of economic development, a large number of people left their homeland and went to the developed coastal areas to explore for gold. Looking back, this is the beginning of the “atomization” of Chinese society, which also means that individuals further leave the traditional family and have more freedom.
  However, while wealth and freedom grow, it is easy to make people “satisfied and lustful.” Especially after the 1990s, the social atmosphere was once impetuous. Some people’s observance of morality gave way to the pursuit of desire, and the phenomenon of “contracting mistresses” and “raising lovers” became common.
  The “duty of loyalty” between husband and wife re-emphasizes the value of the family. Moreover, the “declaration” is not toothless—take the judgment of a “loyalty agreement case” in 2020 as an example. According to reports, a couple married in 2017. After marriage, the two signed a “Marriage Property Agreement”. It is agreed that in the future, if a party is at fault and divorces due to the breakdown of the relationship between the couple, the offending party shall pay damages.
  However, one day in 2019, the married man stayed at another hotel of the opposite sex.
  The two went to court for divorce. According to the verdict, the court held that the agreement signed by both parties in this marriage was a concretization of the “duty of loyalty” to the couple and should be supported. Therefore, the court ordered the man to pay the woman 50,000 yuan in compensation.
  It is generally believed that the “duty of loyalty” is a kind of moral discipline and should not be held legally responsible for this-as long as the corresponding behavior is not illegal. However, it can be seen from the precedent that the provisions of the Marriage Law partially recognize the integrity of the family as a social unit, and provide protection and defense provisions for this attribute.
  The liberation of people is certainly the pursuit of modern law, but, at least in the current laws and regulations, individual freedom is still restricted in the family scene, which can also be seen as a cultural inheritance.
What does the marriage law protect?

  The “duty of loyalty” between husband and wife was also preserved in the civil code era. Article 1043 of the Civil Code Marriage and Family “Good Family Style, Family Virtues and Family Civilization Construction; Marriage and Family Relations” stipulates: “Spouses should be loyal to each other, respect each other, and love each other.”

  Compared with the revised version of the Marriage Law in 2001, there is one more “mutual love” in the Civil Code, which advocates the improvement of the quality of the construction of “family as a whole” in law.
  However, another provision that also defends the integrity of the family-in layman’s terms, the provision of joint debt between husband and wife-suffered a lot of negative reviews and was finally “rooted” in the Civil Code.
  The former “marital debt” clause refers to Article 24 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 (2). Claiming rights for debts borne in the name of individuals shall be treated as joint debts of husband and wife. However, unless one of the spouses can prove that the creditor and the debtor have clearly agreed that it is a personal debt, or can prove that it falls under the circumstances specified in Article 19, Paragraph 3 of the Marriage Law.
  In other words, the debts owed by either of the spouses to the outside world may become the joint debts of the spouses when they are collected. Unless the other party can prove that the related debt is the personal debt of the spouse.
Compared with the revised version of the Marriage Law in 2001, there is one more “mutual love” in the Civil Code, which advocates the improvement of the quality of the construction of “family as a whole” in law.

  However, in practice, the spouse who has not borrowed often cannot control the spouse’s lending behavior. Even in the most extreme case, the spouse and the so-called “creditor” have deliberately owed huge debts, causing the other party to “be owed.”
  The “marital debt” requirement involves the rights and interests of two parties: one of the creditors and the other of the couple who has not borrowed. The previous clauses clearly favored the creditor. This consideration is not unreasonable-in practice, evasion of debt through “false divorce” is common. On the other hand, among the three parties, it is generally believed that the relationship between husband and wife is closer, which means that the husband and wife are more likely to “set up” and obtain improper benefits from the creditor. This is also a legal reflection of the ethical concept of “husband and wife as one”.
  When implemented in the Civil Code, this problem no longer exists. The Civil Code stipulates that the principle of “joint debt and joint signing” shall be adopted for the determination of joint debt between husband and wife. Undoubtedly, the concept of “husband and wife as one” is weakened again in the law.
  Today, the marriage law has returned to the civil law system and entered the “time of detailed rules”, which is no longer fully described by the previous 27 articles. However, from the perspective of the marriage law’s choice of weights between “family/individuals”, the current law has this tendency: in terms of value advocacy, the law implements and guarantees the value that is beneficial to the maintenance and management of the family, such as the duty of loyalty between husband and wife, Recognition of the “value of housework” in compensation and so on.
  On the other hand, in matters that are beyond the maintenance level of the family and are beyond the needs of daily life, such as debts, pre-marital property, and other civil legal acts in marriage, the current law tends to protect the rights and interests of individuals. Of course, including real estate.

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