瑕疵登记婚姻纠纷民事救济途径研究
发布时间：2018-08-12 12:21
【摘要】：我国在结婚程序上实行的是登记制,《婚姻法》及《婚姻登记条例》规定,当事人申请结婚的需双方共同到婚姻登记机关办理登记手续方可成立有效。我国《婚姻法》有无效婚姻和可撤销婚姻的规定,但其主要针对的是实体上不符合结婚要求的婚姻,而对登记程序上存在瑕疵的婚姻纠纷的处理,虽然《婚姻法》司法解释(三)指出了当事人可以通过申请行政复议或提起行政诉讼解决,但实践过程中发现通过行政途径解决瑕疵登记婚姻存在很大的局限性,包括诉讼时效限制、子女财产问题无法解决、诉讼效率不高、浪费司法资源等问题。加之,很多瑕疵的出现并非单纯是登记机关的过错,有些完全是由于当事人的原因造成的,婚姻登记机关没有过错却承担败诉结果,这实际是一种违法行为与违法责任的不对等。因此,根据婚姻登记的民事性质特点,结合其他国家的先例及部分法官的实践可知,民事诉讼途径在解决瑕疵登记婚姻纠纷中相比行政途径确有一定优势,特别是运用民事诉讼中的婚姻成立与否确认之诉来解决瑕疵登记婚姻纠纷,不但在法理上能得到相关理论支持,而且也能克服行政途径中存在的弊端与难题,具有较高的可行性。本文运用案例分析和比较研究法,通过笔者所任职单位两个性质相同案例处理方式却不同的对比,引出瑕疵登记婚姻案件处理中存在的问题,进而分析行政救济途径解决瑕疵登记婚姻案件的局限性,提出将瑕疵登记婚姻案件应交由民事诉讼处理的观点。全文分成四部分:第一部分是通过介绍笔者任职单位处理的两个瑕疵登记婚姻纠纷案例,由案例的不同处理模式引申出案例处理中所争议的问题及涉及的观点分歧。第二部分主要阐述说明瑕疵登记婚姻的概念、特征和主要类型。第三部分是通过分析对比行政救济途径的局限性,提出民事诉讼途径解决瑕疵登记婚姻的法理依据及优势。第四部分是分析通过民事诉讼确认之诉,也即运用婚姻成立与否确认之诉解决瑕疵登记婚姻纠纷的价值意义及可行性,并就具体的案例如何适用婚姻成立与否确认之诉进行实务分析。
[Abstract]:In our country, the registration system is practiced in the marriage procedure. According to the Marriage Law and the Marriage Registration regulations, the parties who apply for marriage must go to the marriage registration authority to go through the registration procedures. The Marriage Law of our country has the stipulation of invalid marriage and revocable marriage, but it mainly aims at the marriage which does not meet the requirement of marriage in the entity, and deals with the marriage dispute which is defective in the registration procedure. Although the judicial interpretation of the Marriage Law (3) points out that the parties concerned can be resolved by applying for administrative reconsideration or filing administrative proceedings, it is found in practice that there are great limitations in resolving defective registered marriages through administrative means. It includes limitation of action, problem of children's property, inefficiency of litigation, waste of judicial resources and so on. In addition, the appearance of many defects is not simply the fault of the registration authority. Some of them are caused entirely by the reasons of the parties concerned. The marriage registration authorities bear the result of losing the case without any fault. This is actually a violation of the law and the illegality of the responsibility of the unequal. Therefore, according to the civil nature of marriage registration, combined with the precedents of other countries and the practice of some judges, the civil litigation approach has some advantages over the administrative approach in resolving marital disputes of defective registration. In particular, the application of civil litigation in civil litigation to the settlement of marriage disputes of defective registration can not only be supported by relevant theories, but also overcome the drawbacks and difficulties existing in the administrative channels. It has high feasibility. This article uses the case analysis and the comparative research method, through the author's office unit two same nature case processing way but different contrast, elicits the flaw registration marriage case processing existence question, Then it analyzes the limitation of administrative remedy to solve the defect registration marriage cases, and puts forward the point of view that the defective registration marriage cases should be dealt with in civil proceedings. The full text is divided into four parts: the first part is through the introduction of the author's office to deal with two cases of marriage disputes of defective registration, from the different treatment mode of cases to deduce the controversial issues and the views involved in the treatment of different cases. The second part mainly explains the concept, characteristics and main types of defective registered marriage. The third part analyzes the limitation of administrative remedy and puts forward the legal basis and advantages of civil litigation to solve the problem of registered marriage. The fourth part is to analyze the value significance and feasibility of using civil action to confirm civil litigation, that is to say, to solve the marriage dispute of defective registration by using the action of marriage establishment or not. And how to apply the specific case of the establishment of marriage or not to confirm the action for practical analysis.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D923.9
本文编号：2179039
[Abstract]:In our country, the registration system is practiced in the marriage procedure. According to the Marriage Law and the Marriage Registration regulations, the parties who apply for marriage must go to the marriage registration authority to go through the registration procedures. The Marriage Law of our country has the stipulation of invalid marriage and revocable marriage, but it mainly aims at the marriage which does not meet the requirement of marriage in the entity, and deals with the marriage dispute which is defective in the registration procedure. Although the judicial interpretation of the Marriage Law (3) points out that the parties concerned can be resolved by applying for administrative reconsideration or filing administrative proceedings, it is found in practice that there are great limitations in resolving defective registered marriages through administrative means. It includes limitation of action, problem of children's property, inefficiency of litigation, waste of judicial resources and so on. In addition, the appearance of many defects is not simply the fault of the registration authority. Some of them are caused entirely by the reasons of the parties concerned. The marriage registration authorities bear the result of losing the case without any fault. This is actually a violation of the law and the illegality of the responsibility of the unequal. Therefore, according to the civil nature of marriage registration, combined with the precedents of other countries and the practice of some judges, the civil litigation approach has some advantages over the administrative approach in resolving marital disputes of defective registration. In particular, the application of civil litigation in civil litigation to the settlement of marriage disputes of defective registration can not only be supported by relevant theories, but also overcome the drawbacks and difficulties existing in the administrative channels. It has high feasibility. This article uses the case analysis and the comparative research method, through the author's office unit two same nature case processing way but different contrast, elicits the flaw registration marriage case processing existence question, Then it analyzes the limitation of administrative remedy to solve the defect registration marriage cases, and puts forward the point of view that the defective registration marriage cases should be dealt with in civil proceedings. The full text is divided into four parts: the first part is through the introduction of the author's office to deal with two cases of marriage disputes of defective registration, from the different treatment mode of cases to deduce the controversial issues and the views involved in the treatment of different cases. The second part mainly explains the concept, characteristics and main types of defective registered marriage. The third part analyzes the limitation of administrative remedy and puts forward the legal basis and advantages of civil litigation to solve the problem of registered marriage. The fourth part is to analyze the value significance and feasibility of using civil action to confirm civil litigation, that is to say, to solve the marriage dispute of defective registration by using the action of marriage establishment or not. And how to apply the specific case of the establishment of marriage or not to confirm the action for practical analysis.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D923.9
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