"Unlawful cohabitation" Change and freedom of choice

Friedman's choice of the Republic of the book focuses on the characteristics of modern Western legal authority "," personal choice "is the core concept of legal culture, he noted that" the core of the new legal culture is an attitude, which an attitude to give the concept of individual choice as well as on the status of ", and then large sums to outline the" Select the Republic. However, the republic of choice is not quite so beautiful, not everyone in the society to complete this task better shape a meaningful self, a "Not everyone is designed to bring personal satisfaction and life of the good things of life on the road, the failure of the choice of extreme dissatisfaction and lead to the pathological and criminal, but for certain offenses, such as victims of crime control means of the evolution is still reflected to personal choice as the core of the contemporary legal culture. Friedman described in detail in the eighth chapter of the book on these issues. Combined with the theory, we can see that the "illegal cohabitation" the concept of legal culture of change and variability.

"Illegal cohabitation" This concept first appeared in our country in the late 1980s, the emergence began on the controversial scholars to the concept of "contrary to the proper meaning of the marital relationship, resulting in criminal law and civil law on the basic concepts of chaos and the logical relationship between the violation of the basic concepts of civil law "as an excuse to advocate repeal of the expression, more deputies submit recommendations on the abolition of the concept of illegal cohabitation, and protect citizens' personal rights, calling for the abolition in 2007. The concept appeared so far in the legislation, especially the civil law on the meaning of many changes, the original criticism, and some have been adopted by legislation, but it is precisely this shift also reflects Friedman in a sexual crime control some thesis, the author of the front of the comb and reflection, to talk about their awareness and understanding.

December 13, 1989, the Supreme People's Court announced the "People's Court did not do the marriage registration, living in the case of husband and wife, a number of observations, three of which provides that:" Since the Ministry of Civil Affairs a new Marriage Registration Regulations Enforcement the date, not to do marriage registration as husband and wife living in, treat the illegal cohabitation relationship. "released by the Ministry of Civil Affairs, 24 of the Marriage Registration Ordinance into effect on February 1, 1994 provides that:" not yet reached citizens of legal age for marriage living together as husband and wife, or the parties to meet the conditions for marriage without marriage registration cohabitation as husband and wife, their marriage is invalid, not protected by law. "from the above provisions, at this time illegal cohabitation Not for marriage registration, the behavior of life living together as husband and wife.

2001 Marriage Law amendment to the original section 3, paragraph 2 amended to read: "Bigamy is prohibited. Prohibited spouse is cohabiting with another person. Prohibiting domestic violence. Prohibit the abuse and abandonment among family members." Is added as the fourth : "Husband and wife shall be faithful to and respect each other; family members shall respect the old and love children, and help each other to maintain equal, harmonious and civilized marriage and family relations." As a result, spouses cohabiting with another person was undoubtedly in violation of the Marriage Law "illegal cohabitation ".

December 25, 2001, the Supreme People's Court announced "on the application of the Marriage Law of the People's Republic of China, a number of issues to explain (a) 2 provides:" Marriage Law, 3, 32, 46 the provisions of ' spouse living together with others' situation, who has a spouse and extramarital heterosexual, not as husband and wife, sustained, stable living together. "Article 5:" ... February 1, 1994 the Ministry of Civil Affairs Marriage Registration Ordinance promulgated, both men and women in line with the substantial conditions for marriage, the people's court shall inform their marriage registration before the case acceptance; not re-submit the marriage registration, lifted to common-law relationship. "At this point, the spouse in violation of Marriage Law and the others "illegal cohabitation, more specific within the meaning of judicial interpretation of the supplementary long-term use" illegal cohabitation relationship "has been" cohabitation relationship "replaced.

October 1, 2003, the State Council enacted the Marriage Registration Ordinance, the Ordinance to delete the supervision and management of this part of the content, delete "not for marriage registration and cohabitation as husband and wife treat illegal cohabitation relationship" part of the requirements. December 26, 2003, the Supreme People's Court announced the "interpretation of the" Marriage Law of the People's Republic of China "(b) a further clear that:" The parties prosecution request to lift the common-law relationship, the people's court shall not accept party requests to lift the common-law relationship, belonging to three of the Marriage Law, the provisions of section 32, section 46 'has a spouse living together with others' people's court shall accept and shall be released upon the parties due to cohabitation during the division of property or proceedings in child custody disputes, the people's court shall accept a more specific regulation "in violation of the Marriage Law" illegal cohabitation "cohabitation are caused by the division of property or child custody dispute" actionable.

In civil law, "unlawful cohabitation" from the late 1980s, the earliest 20th century, refers not to apply for marriage registration procedures that the behavior of couples cohabit life to the early 1990s, refers only to have a spouse in violation of the marriage law and cohabitation behavior, range greatly narrow unmarried adult male and female voluntary cohabitation has been excluded, in other words, such behavior is legal. This reflects Friedman of the law should not prohibit freedom of choice behavior, tend to adopt the protection of individuals choose to define the boundaries of human behavior as the core standards. This fact reflects the changes of social and legal culture in China, the Chinese Marriage Law, enacted in the early 1980s, marriage registration, the gradual deepening of the people, but most people will be non-marital cohabitation relationship as an immoral act, the late Supreme Court of the 1980s judicial interpretation of this "immoral" is called "illegal", and the public morality laws also realized, by announcing this immoral behavior, illegal Friedman so-called "limit and control, social non-marital cohabitation as the "crossing the street rat", people cry.

By the early 1990s, China's reform and opening up to further deepen and began building a socialist market economy, economic autonomy gradually penetrated into areas of life, independent living and the so-called concept of individual choice has proliferated, repressed self started to wake up, the traditional morality even have been legal recognition of the moral to ignore, the phenomenon of non-marital cohabitation is increasingly common, which ultimately makes the legislation to the cohabitation of unmarried adult male and female voluntary excluded, which is what Friedman pointed out the "amazing The growth of cohabitation, on behalf of a decisive rejection of traditional morality, sexual repression to abandon ", to some extent reflects the legal culture in the freedom of choice and performance of individualism.

Needs to be stressed is the illegal cohabitation is limited to the field of civil, in the field of Friedman of Criminal law after the founding of the normal operation of the period, unmarried adult men and women voluntarily, does no harm to living together behavior is generally not considered a crime unless it is a violation of the charges provisions of the protection of young girls and the marital relationship, of course, if the observation period extended from the feudal society of ancient China to the present, there are still Friedman noted a certain degree of sexual crime sin of the trend. But in today's China's criminal law, and did not see any sign of loosening and Friedman's reference to "adultery" corresponds to "bigamy", but also with the civil law does not recognize de facto relationships, the Criminal Law on to determine whether to constitute bigamy, adoption of the standard of de facto relationships, so-called de facto relationship means the spouse and others to the name of husband and wife living together life, or knowing that others have a spouse with whom cohabitation as husband and wife, "cohabitation relationship" in violation of criminal law, was undoubtedly the "illegal cohabitation relationship" is no doubt.

In summary, the regulation of "illegal cohabitation" changes to a certain extent reflects the trend of the Friedman theory due to adults because of the legal culture of individualism and personal choice between voluntary harmless sexual behavior illegal, you can also see "unlawful cohabitation" The concept is still relevant in today's legislative framework, not completely abolish. Finally, I tried the concept defined, and sort out the circumstances not covered by the legislation. According to their literal meaning, illegal cohabitation, should refer to the illegal cohabitation between men and women. Refer to the "Marriage Law Interpretation (1) 2" continuous, stable living together, illegal cohabitation illegal, voluntary, persistent characteristics, make it voluntary and rape, illegal detention of behavior to distinguish persistent it to distinguish the occasional act of adultery. The provisions of existing legislation and relevant judicial interpretation, I believe, illegal cohabitation generally have the following: one, who has a spouse in violation of the marriage law and cohabitation behavior; deliberately under fourteen years of age girls and women with mental illness cohabitation constitute the crime of rape and other criminal acts (including dementia);, bigamy and cohabitation with the active duty spouse constitute bigamy, destruction of military marriage, crime and criminal behavior; 4, did not constitute criminal offenses of bigamy. (Liu Jinrui Author: Tsinghua University School of Law)