宏观架构与立法审思——关于婚姻家庭制度的完善

Macro Structure and Legislative Reflections

婚姻家庭制度的完善 ,不仅需要解决立法技术问题 ,更需要解决立法观念与立法意识问题。要使《婚姻法》成为具有前瞻性、适用性、科学性的法典 ,则须认真思考如下问题 :《婚姻法》以独立法典的模式出现 ,既可兼顾立法传统 ,又能顺应制定民法典的趋势 ;确立婚约制度 ,不仅是婚俗生活的要求 ,也是完善婚姻家庭立法的要求 ;离婚损害赔偿制度是对婚姻自由原则的补充 ,有助于对善意当事人权益的维护 ;建立完备的亲权制度势在必行。

The perfection of marriage and Family institution requires the solution of not only legislative technical problems but also of legislative concepts and legislative consciousness. To make the 'Law on Marriage' as code of law that is proactive, applicable, and scientific, the following issues must be fully reflected upon. 'The Law on Marriage' is to appear in the form of an independent code which both takes the legislative tradition into consideration and accommodate the trend of civil law codification. The establishment of institution of engagement is the requirement of not only marriage practices but also of perfecting legislation of marriage and family. The damages system for divorce is a supplement to the doctrine of freedom of marriage, which is beneficial for safeguarding the rights and interests of good faith parties. It is imperative that a perfect institution of parental power be established.