论我国非婚同居规制方式的立法选择——从比较法视角

The Legislation Choice on the Regulation Method of Unmarried Cohabitation in China——From the Angle of Comparative Study

各国对非婚同居的规制方式主要有三种,即作为婚姻的规制方式、作为事实状态的规制方式和作为独立制度的规制方式。我国立法应对非婚同居作出明确规定,对其予以客观中立的规制。具体而言,对于当事人具有结婚合意且符合结婚实质要件的非婚同居,作为事实婚姻加以保护;对虽不符合事实婚姻构成要件,但具有一定稳定性的非婚同居,作为事实状态予以规制;当社会现实迫切需要时,设立专门的家庭伴侣制度。

The regulation method of unmarried cohabitation has developed into three categories in the world, the regulation method as marriage, the one as de facto status and the one as an independent system. Unmarried cohabitation should be fixed definitely in related legislation, and be regulated objectively and neutrally. In particular, the unmarried cohabitation in which cohabitants have the consent of marriage and satisfy all substantive requirements of marriage should be protected as de facto marriage. The unmarried cohabitation where show certain stability but couldn＇ t satisfy all substantive requirements of marriage should be regulated as de facto status. And the system of domestic partnership should be established if urgently needed.