论直系姻亲间婚姻之效力——《婚姻法》第10条第二款的解释适用

The Research of Effectiveness of Marriage Between Direct Affinities——Interpretation to the Second Paragraph of Article 10 in Marriage Law

婚姻法律事关家庭伦理和社会善良风俗,并非能简单适用法不禁止即自由的私法原则。诸如公公与儿媳、岳母与女婿间的直系姻亲婚姻有违人伦道德,侵害公序良俗,引发法制体系内部规范的冲突,在比较法上亦多被禁止,应为无效婚姻。我国《婚姻法》第10条第二款未对该类婚姻效力作出规定,直系姻亲间婚姻仍不时见诸报端,实属法律之漏洞,应在后续修法中予以明确。

Marriage law is related to the family ethics and morals,but not simply applies to the private law principle that ＂absence of legal prohibition means freedom＂.There is no provision about the marriage between direct affinities in our marriage law,but marriages between father-in-law and his daughter-in-law,mother-in-law and her son-in-law are against the human relations＇ morality,and infringe upon public order and good custom,resulting in conflict inside the legal system.It is usually forbidden in Comparative Law,so it should be prohibited.Our marriage law should make corresponding revision in the aspect of positive conditions of marriage.