Article 1041
Marriage and family are protected by the state.
Freedom of marriage, monogamy, and equality between men and women are practiced.
Protect the legitimate rights and interests of women, minors, the elderly, and the disabled.
I. Purpose of this Article
This article is a provision on the basic principles of marriage and family relations.
II. Evolution of the Provisions
Article 1 of the original Marriage Law of 1950 is not only a provision for the purpose of legislation, but also a provision for the basic principles of marriage and family relations. It can be seen from this article that the basic principles of freedom of marriage, monogamy, equal rights of men and women, and protection of the legitimate rights and interests of women and children were established at the beginning of the enactment of the Marriage Law. Article 2 of the original Marriage Law of 1980 is divided into three paragraphs to improve the basic principles of marriage and family relations, of which paragraph 1 continues the three principles of freedom of marriage, equality between men and women, and monogamy of the original Marriage Law of 1950; Paragraph 3 adds the principle of family planning. These principles are perpetuated by the original Marriage Act, as amended in 2001. This article has been revised and improved on the basis of the provisions of Article 2 of the original Marriage Law, as amended in 2001: first, the principle of "marriage and family shall be protected by the state" has been added as the first paragraph of this article; second, the principle of "freedom of marriage, monogamy, and equal rights of men and women" in Article 2, Paragraph 1 of the original Marriage Law, amended in 2001, has been adjusted to paragraph 2; third, the principle of protection of special groups has been adjusted to paragraph 3, and the protection of women provided for in the former Marriage Law, amended in 2001, has been adjusted to paragraph 2. On the basis of the legitimate rights and interests of children and the elderly, provisions on the protection of the legitimate rights and interests of the disabled have been added, which are expressed as "protecting the legitimate rights and interests of women, minors, the elderly, and the disabled"; fourth, the provision of "practicing family planning" in paragraph 3 of Article 2 of the original "Marriage Law," as amended in 2001, has been deleted.
3. Interpretation of Provisions
This article stipulates the basic principles of the Marriage and Family Law.
(1) Marriage and family are protected by the state. The basic principles laid down in the Marriage Law include freedom of marriage, monogamy, equality between men and women, family planning, etc. It can be seen that the main norm is the marriage relationship, and not enough attention is paid to the family relationship. The family is the basic unit of kinship. The strength of family relationships is of great significance to family members and society as well. The Civil Code draws on Article 104 of the General Principles of the Civil Law on "marriage, family, the elderly, mothers and children shall be protected by law" to add this content, emphasizing that marriage and family are protected by law. This has become the criterion for handling marital and family issues, and is conducive to achieving stability and harmony in family relations.
(2) The principle of freedom of marriage refers to the right of natural persons to marry or divorce without restraint, control or illegal interference in accordance with the law. Freedom of marriage is a basic principle of modern marriage and family legislation, based on the independence, equality, freedom and dignity of personality, a basic right of natural persons, and a basic principle of kinship law. The specific contents are: 1) Exercising marital rights in accordance with the law. The Marriage and Family Law stipulates the freedom of marriage, which guarantees the freedom of natural persons to exercise their marital autonomy in accordance with the law in the family law. The exercise of marital autonomy is free, but it must be carried out in accordance with the law, and the act of marriage is determined in accordance with the provisions of the law. 2) Unfettered, uncontrolled, and unlawful interference. The perpetrator is free from restraint, control and unlawful interference to decide on the conduct of the marriage. 3) Including the freedom to marry and the freedom to divorce.
(3) The principle of monogamy is a marriage system in which a man and a woman become husband and wife, and it is also the basic principle of marriage relations stipulated in the family law of the mainland. This means that: 1) no one, regardless of social status or wealth, may have more than two spouses at the same time, 2) no one may remarry after marriage or before the death or divorce of his spouse, and 3) all overt and concealed polygamy or polyandry relations are illegal.
(4) The principle of equality between men and women. Gender equality and equal rights for men and women are a basic human right in modern society, which is reflected in the fact that both men and women enjoy the same rights and bear the same obligations in kinship relationships. The basic meaning of this is: 1) equality between men and women in marriage, 2) equality of status of family members, and 3) equality of status among all close relatives.
(5) The principle of protecting the legitimate rights and interests of women, children, the elderly, and the disabled. This is the requirement of social morality. The Marriage and Family Law places special emphasis on the protection of the legitimate rights and interests of women, children, the elderly, and the disabled, and regards it as the basic principle of the Family Law, so as to better protect the vulnerable groups among relatives and prevent their legitimate rights and interests from being infringed upon.
4. Cases
Zhang XX v. Yan XX Personality Rights Dispute
Facts: Zhang and Yan were introduced to each other and fell in love. After ending the relationship, Zhang Moumou sent text messages to Yan Moumou many times, asking Yan Moumou to compensate for his losses, but Yan Moumou ignored them, and Zhang Moumou appealed to the court to ask Yan Moumou to compensate for his losses. The court of first instance held that Zhang and Yan, as lovers, broke up for various reasons after establishing a romantic relationship, and neither party infringed on each other's personality rights, so there was no legal basis for Zhang to demand compensation for Yan Moumou's mental damages. Zhang Moumou was dissatisfied with the first-instance judgment and appealed. The court of second instance held that the mainland implements a marriage system of freedom of marriage, monogamy, and equality between men and women, and that marriage must be completely voluntary between men and women, and neither party is allowed to force the other party or any third party to interfere with it, so Yan XX and Zhang XX refused to register their marriage after falling in love, which is the right to freedom of Yan's marriage granted by law, and should not be found to be a tort on Zhang's right to marital autonomy.
5. Analysis
Freedom of marriage is the first principle of the Marriage Law and Part V of the Civil Code, "Marriage and Family", and the parties to a marriage can decide their own marital issues independently and voluntarily, and no one is allowed to engage in coercion, deception, taking advantage of others' danger, arrangement, or illegal interference. The focus of the dispute in this case is whether Zhang Moumou infringed on Yan's freedom to marry. In this case, Zhang and Yan fell in love freely and ended their relationship. Although Yan Moumou had agreed to marry Zhang, the law gave Yan Moumou the right to marry, and then Yan Moumou had the right to refuse to marry Zhang, and Zhang Moumou could not coerce, deceive, take advantage of others' danger, arrange and illegally interfere with Yan's freedom of marriage, so Zhang's behavior infringed on Yan's freedom to marry. Zhang XX has no right to claim moral damages from Yan XX because Yan XX refused to marry.