心智残障者结婚的效力及其权利保障

Problems and Countermeasures of Marriage Validity Identification for People with Mental Disability

心智残障者结婚及自己决定权作为一项人格权受宪法保护。我国《民法典》第1051条、第1052条、第1053条对婚姻瑕疵事由作封闭性规定,致使心智残障者缔结婚姻效力认定适用《民法典》“婚姻家庭编”受限。结婚是双方要式法律行为,《民法典》“总则编”中民事行为效力体系完整,且逻辑上“总则编”规定可适用于所有分则各编,这为心智残障者结婚效力认定提供可能。极重度心智残障者缔结婚姻应当无效,重度、中度和轻度心智残障者缔结婚姻效力应采取有效和可撤销双重认定路径。借鉴德国和日本法经验,提出事实婚姻有效化方案,建议在《残疾人保障法》中增设协助决定制度和“鼓励婚前健康检查”条款。

As a personality right,the marriage autonomy of mentally disabled people is protected by the constitution.Articles 1051,1052,and 1053 of China's Civil Code have closed provisions on the causes of marital defects,resulting in restrictions on the application of the Marriage and Family Part of the Civil Code to the determination of the validity of marriage for persons with mental disabilities,which in turn affects the freedom of marriage for mentally disabled people.Marriage is a legal action between the two parties,and the validity system of civil actions in the General Part of the Civil Code is complete,which makes it possible to identify the validity of marriage for mentally disabled people.Therefore,this paper proposes that the marriage concluded by people with very severe mental disabilities is invalid,and the marriage validity of people with severe,moderate and mild mental disabilities adopt a valid or revocable dual recognition path.Advocating the legislative experience of Germany and Japan for reference and putting forward an effective transformation scheme of de facto marriage,the author suggests that the decision-making assistance system and the clause of“encouraging premarital medical examination and physical examination”should be added to the Law of the People's Republic of China on Protection of Disabled Persons.