对重婚罪的重新解读——兼对妨害婚姻、家庭罪整体搬迁之利弊分析

A New Interpretation of Bigamy

从实然的角度讲,现行刑法中重婚罪的主要法益是配偶在夫妻关系中要求对方忠实于自己的权利,次要法益才是一夫一妻制。被害人承诺配偶重婚的,重婚行为不构成犯罪。前后都是事实婚姻,不构成重婚罪。重婚罪是即成犯,追诉时效从犯罪成立之日起计算。现行刑法中遗弃罪的法益是需要扶助人的受扶助的权利,对象不限于家庭成员。妨害婚姻、家庭罪整体搬迁弊多利少。

According to modern criminal law, the primary legal benefit in the crime of bigamy refers to the right that a party in marital relations enjoys by demanding the fidelity of his/ her spouse, and monogamy is actually the secondary legal benefit. If the victim accepts the fact of bigamy of his/ her spouse, then the act of bigamy is not a crime. In the case of the first and the second marriages being both fact marriages the bigamy is not a crime either. The criminal of bigamy is an immediacy offender, so the limitation period of prosecution should be counted from the day when the crime is committed. In the crime of abandonment the legal benefit refers to the right of the person who needs assistance to receive assistance and the object is not necessarily confined to the family members. As to the crime of jeopardizing marriage and entire family move, there are more disadvantages than advantages.