事实婚姻的立法冲突及解决

Legislative Conflict of Factual Marriage and Solution

事实婚姻不仅是婚姻法的调整对象,也是刑法认定重婚罪的重要基础。在法律规则和司法解释的具体展开上,刑法和婚姻法基于不同的立场从而有所不同,并最终导致在重婚罪的认定上产生冲突。刑法领域内的事实婚姻有其独特的含义,刑法领域内事实婚姻的推定有效和认定无效不同于婚姻法领域内的事实婚姻有效与无效,具有重婚罪构成要件的作用和意义。尊重多元的情感生活方式,公法和私法的融合与重整,都可以为事实婚姻在刑法和婚姻法上的冲突提供解决方案。

Factual marriage is not only the adjustment object of the Marriage Law, but also an important element to bigamy in the Criminal Law. The Marriage law and the Criminal Law differ from each other in the rule of law and judicial interpretation, based on different positions and ultimately lead up to conflict in the identification of bigamy. In the field of the Criminal Law, factual marriage has a unique meaning, a compositional element of bigamy, which functions differently in the Marriage Law. Such measures, such as respect for diverse ways of life, and integration and restructuring of public law and private law, provide an approach to the conflict of the Criminal Law and the Marriage Law on factual marriage.