Comparative analysis of marriage flaw dispute administrative litigation and civil litigation

       ----In two different procedure litigation case Perspective

                Wang Liren

In practice, the "marriage registration flaws" disputes, mostly through administrative litigation marriage registration, and few are solved through civil litigation. But whether it is through civil litigation annulment, or through the administrative litigation is that the cancellation of marriage registration, marriage invalid, are based on the name of the parties to the marriage registration of marriage. So, this treatment is correct? "Marriage registration flaws" in the end, it should be how to deal with? To study the combined, two case analysis.

A, examples -- look at two specific cases:

Case1Application of administrative procedure: marriage flaw dispute case

Yan Jie and Yan Mei is a pair of twin sisters (born September 1, 1979). In August 18, 2004, Yan Mei and Jiang Mou married, Yan Mei did not find their identity cards will hold Yan elder sister's identity card to the marriage registration office to apply for marriage registration, Yan Yan Mei is due to elder sister and twin sister, looks very similar, the marriage registration office is not found, then the marriage registration. Yan sister holding the marriage certificate and Jiang Mou cohabitation. As early as in December 15, 2001, Yan elder sister holding my ID card is registered for marriage and wang.

Because of Yan Mei and Jiang Mou estranged, at the beginning of 2010, Yan Mei in the helpless, find a lawyer in the city, prosecution and Jiang Mou divorce, raising their daughter.

In the lawsuit, the lawyer found Yan Mei provided personal information and her husband marriage registration information does not match, Yan sister marriage registration ID is the sister. Lawyer was informed, Yan elder sister back in 2001 has registered for marriage, because of its ID two times by the registration of marriage, according to the relevant provisions of the current marriage law, constitute bigamy.
   The lawyer recommended by Yan Mei withdraw the divorce, by his sister to make administrative lawsuit, revoke her and Jiang Mou of bigamy.

Yan sister will withdraw the divorce proceedings, the elder sister as a plaintiff to prosecute the marriage registration office, asking the court to Yan sister and Jiang Mou of invalid marriage. The court thinks, Yan elder sister to get married for the two time registration, provisions, breach of marriage law is bigamy, then ruling Yan sister and Jiang Mou marriage invalid.

Case2Application: the civil procedure marriage flaw dispute case

The plaintiff and defendant Zhao Guangwu Liu Hongling during the period of working in Yichang city in 2004 September to meet and to establish a relationship, because Liu Hong Ling premarital pregnancy and not of marriageable age, he borrowed his sister Liu Luying ID card, photo of himself and Zhao Guangwu for the registration of marriage. After two people in the name of husband and wife living in Yichang city. By the end of 2006, the defendant Zhao Guangwu to go out to work, never contact with the plaintiff. In April 21, 2008, Liu Hongling by marriage certificate in Yichang Maternal and Child Health-Care Hospital make up the birth of his daughter Zhao Hanjing's "proof" medicine, the proof of registration of the Zhao Hanjing father Zhao Guangwu, mother of Liu Luying "".

The plaintiff Liu Hongling on December 11, 2009 to the Yichang City Point Military prosecution requirements and Zhao Guangwu divorce, children from my upbringing, and asked the court made judicial suggestions to the departments of civil affairs, civil affairs departments shall revoke their marriage proposal . During the trial, the judge Luo Hongjun read my "matrimonial frontier theory and judicial practice" one book, he thinks, the case can be directly in the civil action according to the marriage establishment and not established theory, and the concrete procedure technology problems with my consultations. I think, on the one hand is the divorce process, a proposal to revoke the registration of marriage, both contradictory and judicial suggestions, also cannot become the independent claims. I suggest that the judicial interpretation, the change of litigious claim, the marriage was established and not established action and the action for divorce and filed, court proceedings. Luo Hongjun adopted the proposal. Through judicial interpretation, Liu Hongling changed the litigation request: request the court to confirm the presence of the marriage between Liu Hongling and Zhao Guangwu, does not have the marriage between Liu Luying and Zhao Guangwu, and that Liu Hongling and Zhao Guangwu's marriage is valid; judgment Liu Hong Ling and Zhao Guangwu divorce; daughter Zhao Hanjing by Liu Hongling responsible for monitoring. The defendant in accordance with the law public summons, fails to take part in the proceedings, the court also fails to submit a written defense.

During the proceedings, the plaintiff's request, the court commissioned by the Yichang City Public Security Bureau Criminal technical appraisal for paternity of Liu Hongling and Zhao Hanjing, Zhao Hanjing and Liu Hongling have concluded: kinship, kinship probability greater than 99.99%.

In April 12, 2010, Yichang City District People's court that, the plaintiff Liu Hongling was below the legal age for marriage, borrows its sister Liu Luying's ID card and the defendant Zhao Guangwu to apply for marriage registration, and for their children for a birth certificate, his behavior is wrong. But the plaintiff and defendant Zhao Guangwu Liu Hongling married with common consensus and behavior, and the two sides as husband and wife to live together; Liu Luying and Zhao Guangwu never married agreement, nor as husband and wife to live together in the. Therefore, the establishment of the accused Liu Hongling and Zhao Guangwu of marriage, Liu Luying and Zhao Guangwu's marriage is not established. The plaintiff and the defendant Zhao Guangwu Liu Hongling was the legal age for marriage, the marriage invalid has disappeared, shall be deemed as the marriage is valid. Because the defendant Zhao Guangwu One's whereabouts is a mystery. has been more than two years, cease to exist except in name of both the relationship between husband and wife, so the plaintiff Liu Hongling's request for divorce, the court shall support. Medical proof of birth registration as paternity probability of lady Zhao Hanjing Zhao Guangwu and "Liu Luying" and the plaintiff Liu Hongling is greater than 99.99%, shall be deemed Liu Hongling Zhao Hanjing mother, Liu Luying is not Zhao Hanjing's mother. Then according to the law ruled: first, the plaintiff and the defendant Liu Hongling Zhao Guangwu marriage is valid; Liu Luying and Zhao Guang Wu marital relationship does not hold. Two, the plaintiff and defendant Zhao Guangwu Liu Hongling divorce. Three, Zhao Hanjing Liu Hongling is responsible for monitoring the plaintiff.

Comparative analysis of litigation and legal entity processing path two, two specific cases

1From the procedure, comparison

1.Case2.The marriage was founded and was not suit to solve the case, the marriage was established and not established action, effective and invalid action, action for divorce and marriage incidental litigation proceedings, one-time solve disputes. Can be said that the relevant legal marriage "catch all in one draft", no need to repeat the procedure, has reflected the economic, convenient, efficient principle; embody the idea of modern judicature, is a good example of judicial activism. This is the "national marriage first sentence", have milepost sense.

2.Case1.It will be a divided into three V, a case in three case, drag the tedious, time-consuming and laborious. A divorce case (withdrawal); the two is for a declaration of nullity of marriage case; three is the division of property and child custody. But for a declaration of nullity of marriage case, does not really solve the Yan Jiang Mei and effectiveness of marriage problems, solve only Yan Jie and Jiang Mou marriage effect.

2From the comparison of the entity processing

1.Case1.There are two problems in processing cases

First,"Case1.The court thinks, Yan elder sister to get married for the two time in violation of provisions, the registration, marriage law of bigamy, the qualitative is wrong. Yan Jie and Jiang Mou not married agreement, there was no marriage registration, but did not live together, what is marriage? Therefore, it is not the invalid marriage, but marriage is not established, namely Yan sister and Jiang Mou does not exist the marriage relationship, but not a marriage invalid. If the identity being falsely identified as the establishment of marriage, that an unmarried person fraudulent use by others, not be married? A married person fraudulent use by others, not all become bigamy, and legal bigamy? Since Yan Jie belongs to the bigamy, why not be investigated for legal responsibility? Yan Jie has not held bigamy responsibility, reason is the qualitative error.

The secondYan sister Jiang, and a marriage effect how? "Case1.In fact does not solve, but with the declaration of Yan Jie and Jiang a marriage invalid, instead of processing the Yan Mei and Jiang Mou marriage. This treatment, in the procedure actually formed a "neutral" omission phenomenon, the Yan Mei and Jiang Mou marriage cannot be entered a substantive trial. In the entity, Yan Mei just can't seem to find my ID card, in order to "emergency", the use of sister ID, deny Yan sister and Jiang Mou marriage establishment and validity has no legal basis. In this regard, I have discussed in detail in the "marriage litigation theory and judicial practice" one book, 2010 "people's justice" (application) 11 period are introduced, then no longer.

2.Case2.The marriage was founded and was not suit to solve cases satisfactorily, science.

First.Case2.Judge Liu Luying and Zhao Guangwu marriage is not established, not invalid, this ratio"Case1.Accurate.

The second,"Case2.The plaintiff and defendant Liu Hongling Zhao Guangwu marriage is valid is correct;

Third,"Case2.The marriage was founded and was not suit, in a case to solve the problem, Liu Luying and Liu Hongling played the Zhao Guangwu marriage, and simultaneously solve the Liu Hongling divorce and the defendant Zhao Guangwu, the perfect case processing.

The effectiveness of marriage problems involving third people, will be a special emphasis and description. Because the case of marriage in the marriage involving public interest, valid or invalid, up or not up and whether the marriage in the action, third people are likely to influence their interests other than , which of course can not make the relationship differ from man to man the. Therefore, not only in the case of marriage for a solution for the principle, and the judgment has the potency. That is to say, the case of marriage decision, has the characteristics of expansion of res judicata, namely the expansion of its scope of validity, also has the binding for third. Clearly stipulates that in some countries and regions of the civil procedure law. Such as "Japanese personnel litigation law", "Civil Procedure Law" stipulated in germany. Taiwan area of our country civil procedure law the provisions of article 582: "marriage is invalid, revocable marriage decision or that marriage up or not up action for, also have effect to the third person." in the circumstances of the case, although Liu Luying did not participate in the proceedings and determination, Liu Hongling and Zhao Guangwu's marriage effective judgment, is directly related to her (Liu Luying and Zhao Guangwu's marriage effect). In the judgment that Liu Hongling and Zhao Guangwu's marriage was founded, Liu Luying and Zhao Guangwu's marriage is not set up the natural, effect of the decision is binding on the Liu Luying. Liu Luying may not be advocated the establishment of marriage with Zhao Guangwu, also need not argue and Zhao Guangwu's marriage is not established. Civil Affairs Bureau, according to the court verdicts, the marriage registration archives indicate true marriage is "Liu Hongling", and the judgment to file. So it will not affect the "Liu Luying" of marriage problems. 

Three, convicted of the sound

Notable is, at present in civil litigation shall not directly handle marriage flaw dispute phenomenon is also quite common.

For example, the relationship between Wang and Chen of Uncle sister-in-law. June 28, 2004, the plaintiff Wang and Chen brother marriage registered in the local civil affairs departments, because of Chen's brother was no ID card, ID card and the borrowing of Chen Wang for the marriage registration procedures and to receive a marriage certificate (certificate of identity information is Chen, but the picture is Chen brother). Wang in the illegal acts, in January 28, 2008 to the Anhui province Ningguo City People's court, request the court to order the Wang and Chen divorce.

Court that, from Wang to sue Chen divorce viewKing, a request and the marriage certificate of the Chen divorce, but is in fact and Chen brother together. Wang and Chen has no wish to marry, and no together, their marriage certificate has been obtained in the case of resort to deceit, obviously cannot divorce to the court handling the case. If Wang declared invalid and Chen marriage, also do not accord with the four conditions of nullity of marriage, only to reject the application for announcing the marriage invalid request. So the king a remedy is to request the marriage registration flawsThe marriage registration office to make corrections or re confirmation, the party may also bring an administrative lawsuit according to law. He dismissed the claims of wang.

For these cases, a division of the Supreme People's Court of the people in the editor"Reference and guide to civil trial(Total No.35Set)"To be sure.The Supreme People's court people a court opinion:The parties to the legal invalid marriage in four cases(Bigamy, a prohibition of marriage between relatives, marriage with medical illness that should not be married and has not been cured after marriage and did not reach the legal age for marriage)For reasons other than for a declaration of nullity of marriage, the court shall reject the application for announcing the marriage invalid litigation request, inform them handled in accordance with the "Administrative Reconsideration Law stipulates" and "administrative procedure law" program.[1]  

We think,Defective marriage registration or invalid marriage cases found in the divorce proceedings, the prosecution dismissed without withdrawing or separately after playing the marriage invalid administrative lawsuit. The action for divorce, marriage invalid, revocable marriage, marriage suit up or not up litigation proceedings. Including the plaintiff claims to increase, a defendant can be tried combined. Of course, in combination with the trial, the trial marriage, marriage shall be invalid valid or invalid, revocable marriage divorce litigation, litigation for the preparation of a lawsuit. In a marriage or the establishment of case trial, then a divorce. If the marriage is invalid or does not exist, there is no divorce, only child or disposal of property.

In Wang and Chen Chen in the divorce case, use other ID and Wang marriage registration, the registration process defects, first is involved in the establishment of marriage and not established, not marriage valid or invalid problem. The only solution is established after the marriage, to solve the validity of marriage.

Therefore, Wang and Chen divorce cases, can be up or not up in the civil procedure of the marriage lawsuit and other litigation proceedings, one-time solution. Even though Wang and Chen marriage is not established, but also can directly deal with their property, no need to play the administrative lawsuit.