Legal advice
Two days ago, a party called to consult, saying that his wife had been saying goodbye for 10 years, and now he found out that she had married someone else and had children.
So, in the face of possible bigamy by spouses, how to maximize the protection of rights?
First, we need to clarify the concept and behavioral characteristics of the crime of bigamy. And it is important to understand that immoral acts such as infidelity and adultery do not necessarily constitute the crime of bigamy.
According to article 258 of the Criminal Law of the People's Republic of China, the crime of bigamy refers to bigamy while having a spouse, or marrying another person knowing that he has a spouse. In other words, the perpetrator violated the relevant provisions of the Criminal Law of the People's Republic of China by committing bigamy, that is, marrying another person when he has a legal spouse or marrying another person knowing that he has a spouse.
Second, the subject of bigamy includes two types of people.
The first is bigamy, that is, a person who already has a spouse and has not dissolved the marriage relationship, and marries another person. This kind of "having a spouse" includes both the husband and wife relationship formed through the legal registration of marriage, and the de facto husband and wife relationship (the de facto formed husband and wife relationship refers to a marriage relationship in which the man and the woman have not gone through the legal marriage registration, but only go through the wedding banquet or marriage ceremony, or the two parties live together in the name of husband and wife, and the surrounding people consider them to be husband and wife. ）。
The second is the person who marries the other party, that is, the person who knows that the other party has a spouse and marries him.
Then, against the above actors, the injured party may take the following criminal, civil or disciplinary measures to protect its legitimate rights and interests:
1. A private criminal prosecution may be filed with a court for a spouse suspected of bigamy (or a report may also be filed to the public security organ to request that the case be filed for investigation and punishment), requesting that the perpetrator be investigated for criminal responsibility.
According to the provisions of the Criminal Law of the People's Republic of China, once the perpetrator is convicted of bigamy, he may be sentenced to fixed-term imprisonment of not more than two years or short-term detention by the people's court. Since then, the perpetrator has a criminal record and follows him for life.
2. At the time of divorce, the injured party may demand that the bigamist party bear the liability for damages and demand that the married party return the corresponding property.
Bigamy is a violation of the duty of fidelity of husband and wife, and for this reason, Article 1091, Paragraph 1 (1) of the Marriage and Family Section of China's Civil Code stipulates:"In any of the following circumstances, the innocent party shall have the right to claim damages if the divorce is caused: (1) bigamy"。Accordingly, the victim may file a request for compensation at the time of divorce according to the circumstances, so that the heavier party can accept the punishment materially and make himself compensated.
In addition, if the bigamy party donates the joint property of the husband and wife to the marrying person or other third party in the process, the injured party may claim that the gift is invalid on the grounds that it violates "public order and good customs", and demand that the above-mentioned married party or the third party return all the donated property in accordance with law.
3. Where the perpetrator is a Party member, the victim may apply to and report to the Party organization to which he belongs or the local Commission for Discipline Inspection, requesting that the Party member suspected of bigamy be disciplined.