新《婚姻法》5年实践之评析

A Critique on the Five-year Practice of the Amendment to the Law of Marriage

本文通过对2001年新《婚姻法》五年多来的实际运行做考察和评析,认为2001年修改《婚姻法》虽然在立法上、理念上及法律规范层面上取得非常大的进步,但实际社会效果有限,没有完全实现其立法目的。要有效地调整婚姻家庭关系,需要在完善法律体系时重视法律规范与社会规范等其它社会调控体系的协调,在法律与社会规范的和谐共生、相互促进、相互补充中实现调整目的。在加强立法的同时,也应该高度重视规范的可行性,研究其实际运行效果。

From the view of a dichotomy of law in paper vs. law in action, this study examines the five-year practice of the Amendment to the Law of Marriage adopted in 2001. This examination concludes that the effect of the Amendment to the Law of Marriage in legal practice is not as good as expected, though the Amendment itself stood as huge progress in legislation, attainment of legal ideal and le- gal norm. The legislative purpose of the Amendment has, thus, not been completely achieved. The Amendment as legal norm should be made to adjust social relations and coordinate with existing social norms and systems. While establishing the legislative significance of the Amendment, there should have been enough attention on the question of feasibility of enforcement of the statute and its practical effect.