现行婚姻法的不足与民法典立法对策

Problems in the Current Chinese Marriage Law and Their Solutions in the Part on Kindred of the Chinese Civil Code

修订后的婚姻法及司法解释在若干方面仍存在缺陷。在制定民法典时应当增加关于近亲属名誉权、近亲属亲情保持权、近亲属称谓权、亲属悼念权与遗体瞻仰权、亲属遗体保护权、亲属延续后代权等亲属权的规定 ;完善关于生育权的规定 ;确立婚后共同所得和家庭生活必需的个人所得归夫妻共有的基本原则 ;合理确定无效婚姻请求权的主体 ;建立兼顾身份和产权的婚姻住房制度 ;并应当明确姘居第三人的共同侵权责任。

Many problems remain in the revised Marriage Law and its judicial interpretation. The Civil Code should contain provisions on the various rights of kinship, such as the near relatives right of reputation , the near relatives right to keep intimate relationship, the right to the titles as near relatives, the right to mourn for a deceased relative, the right to pay respect to the remains of a deceased relative, the right to protect the remains of a deceased relative, and the right of relatives to carry on the family line, improve the provisions on the right of procreation, establish the basic principle of community ownership of joint income and separate income necessary for the family life, rationally determine the subject of the right to claim void marriage, establish a community housing system that take takes into consideration both status and property, and clarify the joint tort liability of the third person who illegally cohabits with a married person.