The nature of “quasi-marriage” based on “trial marriage”, although it is essentially different from the legal marriage relationship, but in addition to the lack of formal elements, there is not much in the essential elements and daily ways of getting along. Differences, therefore, the legal protection of the spouse’s personal rights in the legal marriage relationship should be appropriately given to the trial marriage parties. Such personal rights refer to the spouse rights in legal marriages, but they are incomplete. To study the personal relationship between the two parties during the “trial marriage”, the following aspects should be included:
First, based on the Constitution and the law, general rights such as name and personal liberty are unconditionally protected. On this point, “trial marriage” cohabitants and married people are The law is completely consistent. This is the most basic right of citizens. It will not be different because it has concluded a legal marriage relationship. Therefore, it will not be repeated. In addition, the law always protects women’s right to sexual freedom from infringement. This principle also applies to married couples. Therefore, women’s right to sexual freedom during “trial marriage” cohabitation is also protected by the Constitution and criminal law. Even if the two parties live together in the name of the husband and wife, and the ultimate goal is to conclude a marriage relationship, as long as the cohabitation relationship continues, the man violates the woman’s will, uses violence or threatens violence to threaten or contact women, or deliberately violence. Acts against women, although the Marriage Law can not provide direct legal protection, but can apply to the protection of citizens in many laws, such as the Constitution, the Criminal Law, the General Principles of Civil Law, and the Law on the Protection of Women’s Rights and Interests, depending on the degree of injury. The provisions on the infringement of personal rights and interests shall protect the legitimate rights and interests of the party infringed and impose penalties on the infringer according to law.
Second, during the trial marriage The cohabiting party must also fulfill its loyalty obligations to the other party, similar to the loyalty obligations of husband and wife in the Marriage Law. The nature and purpose of “trial marriage” determines that during the trial marriage, the two parties should use each other as the proposed spouse and observe the rights and obligations of the husband and wife after marriage as the target and measurement standard. Although “trial marriage” is not a legal marriage relationship, its essence is also a kind of marriage behavior. Under the background of monogamy, the “family” harmony depends to a large extent on whether the two parties are faithful to each other. The loyalty obligations during the “trial marriage” and the loyalty obligations in the relationship between marriage and family should also be different. Faithful duty is the most basic and most important obligation in a marriage relationship. If one party is heavily married or cohabiting with another person, the other party can exercise the right to claim for divorce damages when divorced. This is a legal right to protect the rights and interests of the injured party. From the date of the establishment of the legal marriage relationship, both spouses should bear the loyalty obligation to the other party’s marriage. However, “trial marriage” is not legal marriage, and formality and seriousness are slightly weak. As a fictional marriage relationship, this loyalty obligation is not legal, but it is only a moral constraint given to both parties by the loyalty obligation in marriage. . Therefore, when the “trial marriage” cohabitation relationship is lifted, if one or both parties violate the fiduciary duty of the proposed marriage, the other party cannot claim damages as the injured party in the legal marriage. But from the perspective of wealth maximization, and even from a liberal and ethical perspective, a useful policy is to allow people to punish those who violate their loyalty obligations by reaching an internal agreement. If there is a valid internal agreement between the parties, it is agreed that if the “trial marriage” violates the loyalty obligation during cohabitation, and cohabits with others or maintains a gender relationship, the other party may request the other party to give certain financial compensation based on the agreement. Regarding the validity of the loyalty agreement during the “trial marriage”, the academic research on the effectiveness of the marital loyalty agreement is considered to be effective. The main reasons are as follows: First, the agreement conforms to the principle of freedom of contract and has the essential requirements of the contract; 2. The agreement is a conditional agreement on the distribution of property in the case of “trial marriage” failure;
Third, the agreement re-emphasizes the abstract loyalty obligations of the couple in the new marriage law, and embeds it into the pre-marital “trial marriage” stage, in line with the principle of the new “Marriage Law” Spirit is the protection of this “quasi-marriage” phenomenon. Moreover, this provision can prevent some people who are also unscrupulous to achieve the purpose of cohabitation by means of “trial marriage” in a certain degree, and to arbitrarily dissolve the cohabitation relationship on the grounds of “trial marriage” failure, thereby damaging the legitimate rights and interests of the other party.
Again, within the scope of daily life, the “trial marriage” party should be given a certain family agency right. The extension of the “daily family agency right” during the “trial marriage” defines the “mutual property of husband and wife” in the marriage. It refers to the right of the two parties to act as agents for certain legal acts due to daily family affairs. Both parties are agents of each other in daily chores and have mutual agency rights. Of course, the scope of such agency rights should be limited to daily life affairs during the cohabitation period.
Finally, personal relationships are closely related to every citizen and family. Compared with normal marriage, “trial marriage” has special characteristics. The purpose of legal maintenance and promotion of legal marriage is Will not change. Therefore, the adjustment of the personal relationship between the two parties is to ensure the stability of the cohabitation and external protection transactions. In the case of trial and non-marriage, the legitimate rights and interests of the weak party must be safeguarded or protected to the maximum extent. make up. Therefore, based on the rights and obligations of the spouses held by the legal marriage relationship, it is not necessary for the parties who are cohabiting with “trial marriage” to have special legal regulations, such as family planning rights and obligations.