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Decision of the Standing Committee of the National People's Congress on Amending the Marriage Law of the People's Republic of China [Expired]
全国人民代表大会常务委员会关于修改《中华人民共和国婚姻法》的决定 [失效]
【法宝引证码】
 
  
Order of the President of the People's Republic of China
(No. 51)
The Decision of the Standing Committee of the National People's Congress on Amending the Marriage Law of the People's Republic of China was adopted at the 21st Session of the Standing Committee of the Ninth National People's Congress on April 28, 2001. It is hereby promulgated and shall come into force as of the promulgation date.
President of the People's Republic of China Jiang Zemin
April 28, 2001
Decision of the Standing Committee of the National People's Congress on Amending the Marriage Law of the People's Republic of China
(Adopted at the 21st Session of the Standing Committee of the Ninth National People's Congress on April 28, 2001)
It is decided at the 21st Session of the Standing Committee of the Ninth National People's Congress to amend the Marriage Law of the People's Republic of China as follows:
 

中华人民共和国主席令
(第五十一号)


《全国人民代表大会常务委员会关于修改〈中华人民共和国婚姻法〉的决定》已由中华人民共和国第九届全国人民代表大会常务委员会第二十一次会议于2001年4月28日通过,现予公布,自公布之日起施行。
中华人民共和国主席 江泽民
2001年4月28日
全国人民代表大会常务委员会关于修改《中华人民共和国婚姻法》的决定
(2001年4月28日第九届全国人民代表大会常务委员会第二十一次会议通过)
第九届全国人民代表大会常务委员会第二十一次会议决定对《中华人民共和国婚姻法》作如下修改:
1. Paragraph 2 of Article 3 shall be revised as: “Bigamy shall be prohibited. No one who has a spouse may cohabit with any other person. Familial violence shall be prohibited. Maltreatment or desertion of any family member shall be prohibited.”
   一、第三条第二款修改为:“禁止重婚。禁止有配偶者与他人同居。禁止家庭暴力。禁止家庭成员间的虐待和遗弃。”
2. One article shall be inserted as Article 4: “Husband and wife shall be loyal to and respect each other. Family members shall respect the old, take good care of the young, and help each other so as to maintain an equal, harmonious and cultured matrimonial and familial relationship.”
   二、增加一条,作为第四条:“夫妻应当互相忠实,互相尊重;家庭成员间应当敬老爱幼,互相帮助,维护平等、和睦、文明的婚姻家庭关系。”
3. Article 6 shall be changed into Article 7. Item (2) shall be revised as: “if either the man or the woman is suffering from any disease that is regarded by medical science as being unfit for marriage.”
   三、第六条改为第七条,第二项修改为:“(二)患有医学上认为不应当结婚的疾病。”
4. Article 7 shall be changed into Article 8 and shall be revised as: “The man and woman who apply for marriage shall go to the marriage registration authority in person to get registered. If they meet the requirements of this law, they shall be registered and be given a certificate of marriage. The obtaining of a certificate of marriage means the establishment of the relationship of husband and wife. Those who live as husband and wife without registration shall go through remedial registration procedures.”
   四、第七条改为第八条,修改为:“要求结婚的男女双方必须亲自到婚姻登记机关进行结婚登记。符合本法规定的,予以登记,发给结婚证。取得结婚证,即确立夫妻关系。未办理结婚登记的,应当补办登记。”
5. Article 8 shall be changed into Article 9 and shall be revised as: “Having gone through the registration procedures, the woman may become a member of the family of the man and the man may also become a member of the family of the woman, whatever is agreed upon by both parties.”
   五、第八条改为第九条,修改为:“登记结婚后,根据男女双方约定,女方可以成为男方家庭的成员,男方可以成为女方家庭的成员。”
6. One article shall be inserted as Article 10: “If any of the following circumstances occurs, the marriage shall be invalid:
(1) if either party is a bigamist;
(2) if both parties are in the kinship that is forbidden from getting married by law;
(3) if any party has suffered from any disease that is held by medical science as being unfit for getting married and the disease has not been cured after marriage; or
(4) if any party has not come up to the legitimate age for marriage.”
   六、增加一条,作为第十条:“有下列情形之一的,婚姻无效:
“(一)重婚的;
“(二)有禁止结婚的亲属关系的;
“(三)婚前患有医学上认为不应当结婚的疾病,婚后尚未治愈的;
“(四)未到法定婚龄的。”
7. One article shall be inserted as Article 11: “In the case of intimidated marriage, the intimidated party may apply to the marriage registration authority or the people's court for canceling the said marriage. The intimidated party shall make the application within one year since the day of marriage registration. Where any party who is unlawfully confined in personal freedom applies for canceling a marriage, he or she shall make the application within one year since the day he or she resumes personal freedom.”
   七、增加一条,作为第十一条:“因胁迫结婚的,受胁迫的一方可以向婚姻登记机关或人民法院请求撤销该婚姻。受胁迫的一方撤销婚姻的请求,应当自结婚登记之日起一年内提出。被非法限制人身自由的当事人请求撤销婚姻的,应当自恢复人身自由之日起一年内提出。”
8. One article shall be inserted as Article 12: “An invalid or cancelled marriage shall be invalid ab initio, and the parties concerned do not have the rights and obligations of the husband and wife. The property incurred during the term of cohabitation shall be disposed of by both parties upon agreement. Where no agreement is achieved, the people's court shall make a judgment according to the principle of favoring the innocent party. The property rights of the party to a lawful marriage shall not be infringed upon in the disposal of the property relating to a marriage invalidated by bigamy. The relevant provisions of this law concerning parents and children shall apply to the children borne by both parties concerned.”
   八、增加一条,作为第十二条:“无效或被撤销的婚姻,自始无效。当事人不具有夫妻的权利和义务。同居期间所得的财产,由当事人协议处理;协议不成时,由人民法院根据照顾无过错方的原则判决。对重婚导致的婚姻无效的财产处理,不得侵害合法婚姻当事人的财产权益。当事人所生的子女,适用本法有关父母子女的规定。”
9. Article 13 shall be changed into Article 17. Paragraph 1 shall be revised as: “The following properties incurred during the existence of marriage shall be jointly owned by both husband and wife:
(1) wages and bonuses;
(2)any income incurred from production or management;
(3)any income incurred from intellectual property;
(4)any property inherited or bestowed, with the exception of those as mentioned in Article 18 (3) of this law;
(5) other property that shall be jointly owned.
   九、第十三条改为第十七条,第一款修改为:“夫妻在婚姻关系存续期间所得的下列财产,归夫妻共同所有:
“(一)工资、奖金;
“(二)生产、经营的收益;
“(三)知识产权的收益;
“(四)继承或赠与所得的财产,但本法第十八条第三项规定的除外;
“(五)其他应当归共同所有的财产。”
10. One article shall be inserted as Article 18: “The following property shall be owned by either the husband or the wife:
(1)the pre-marital property that is owned by one party;
(2)the payment for medical treatment or living subsidies for the disabled arising from bodily injury on either party;
(3)any property owned by either party decided by the will or the gift contract;
(4)the articles of living specially used by either party;
(5)other property that shall be used by either party.”
   十、增加一条,作为第十八条:“有下列情形之一的,为夫妻一方的财产:
“(一)一方的婚前财产;
“(二)一方因身体受到伤害获得的医疗费、残疾人生活补助费等费用;
“(三)遗嘱或赠与合同中确定只归夫或妻一方的财产;
“(四)一方专用的生活用品;
“(五)其他应当归一方的财产。”
11. One article shall be inserted as Article 19: “Husband and wife may come to an agreement whether the property incurred during the existence of marriage or prior to marriage to be owned by each party, to be jointly owned or partially owned by each party and partially owned by both parties. The agreement shall be made in written form. Where there is no such agreement or it is not explicitly agreed upon, the provisions of articles 17 and 18 shall apply.
The agreement concerning the property obtained during the existence of marriage and pre-marital property shall be binding upon both parties.
Where husband and wife agree to individually own their property, the debt of either the husband or the wife shall be cleared off by the individual property of the debtor if the creditor has the knowledge of the said agreement.”
   十一、增加一条,作为第十九条:“夫妻可以约定婚姻关系存续期间所得的财产以及婚前财产归各自所有、共同所有或部分各自所有、部分共同所有。约定应当采用书面形式。没有约定或约定不明确的,适用本法第十七条、第十八条的规定。
“夫妻对婚姻关系存续期间所得的财产以及婚前财产的约定,对双方具有约束力。
“夫妻对婚姻关系存续期间所得的财产约定归各自所有的,夫或妻一方对外所负的债务,第三人知道该约定的,以夫或妻一方所有的财产清偿。”
12. Article 15 shall be changed into Article 21. Paragraph 4 shall be revised as: “It shall be forbidden to drown or desert infants or commit any other act of killing infants.”
   十二、第十五条改为第二十一条,第四款修改为:“禁止溺婴、弃婴和其他残害婴儿的行为。”
13. Article 16 shall be changed into Article 22 and shall be revised as: “A child may take the surname of either the father or mother.”
   十三、第十六条改为第二十二条,修改为:“子女可以随父姓,可以随母姓。”
14. Article 17 shall be changed into Article 23 and shall be revised as: “Parents shall have the rights and obligations of protecting and educating their children. Where the underage child causes any damage to the state, collective or other person, the parents thereof shall take civil liabilities.”
   十四、第十七条改为第二十三条,修改为:“父母有保护和教育未成年子女的权利和义务。在未成年子女对国家、集体或他人造成损害时,父母有承担民事责任的义务。”
15. Article 19 shall be changed into Article 25. Paragraph 2 shall be revised as: “The natural father or mother that does not directly bring up his or her natural child shall undertake the expenses for the living and education of the natural child until the child is able to live an independent life.”
   十五、第十九条改为第二十五条,第二款修改为:“不直接抚养非婚生子女的生父或生母,应当负担子女的生活费和教育费,直至子女能独立生活为止。”
16. Article 22 shall be changed into Article 28 and shall be revised as: “Capable grandparents and maternal grandparents shall be under the obligation of bringing up the grandchildren and maternal grandchildren whose parents have deceased or are incapable of bringing up their underage children. Capable grandchildren and maternal grandchildren shall be under the obligation of supporting the grandparents and maternal grandparents whose children have deceased or whose children are incapable of supporting them.”
   十六、第二十二条改为第二十八条,修改为:“有负担能力的祖父母、外祖父母,对于父母已经死亡或父母无力抚养的未成年的孙子女、外孙子女,有抚养的义务。有负担能力的孙子女、外孙子女,对于子女已经死亡或子女无力赡养的祖父母、外祖父母,有赡养的义务。”
17. Article 23 shall be changed into Article 29 and shall be revised as: “Capable elder brothers and sisters shall be under the obligation of supporting their younger brothers and sisters whose parents have deceased or whose parents are incapable of supporting them. The younger brothers and sisters who have been brought up by the elder brothers and sisters shall be under the obligation of supporting their elder brothers and sisters who are without labor capabilities and without sources of living aliments.”
   十七、第二十三条改为第二十九条,修改为:“有负担能力的兄、姐,对于父母已经死亡或父母无力抚养的未成年的弟、妹,有扶养的义务。由兄、姐扶养长大的有负担能力的弟、妹,对于缺乏劳动能力又缺乏生活来源的兄、姐,有扶养的义务。”
18. One article shall be inserted as Article 30: “Children shall respect the matrimonial rights of their parents and shall not interfere with the digamy and post-digamous life of their parents. The obligation of the children to support their parents does not terminate as a result of the change of matrimonial relationship of their parents.”
   十八、增加一条,作为第三十条:“子女应当尊重父母的婚姻权利,不得干涉父母再婚以及婚后的生活。子女对父母的赡养义务,不因父母的婚姻关系变化而终止。”
19. Article 24 shall be changed into Article 31 and shall be revised as: “Divorce shall be allowed if both husband and wife are willing to divorce. Both parties shall apply to the marriage registration authority for divorce. The marriage registration authority issues a certificate of divorce after confirming that both parties are indeed willing to divorce and have made proper arrangements for their children and have properly disposed of their property.”
   十九、第二十四条改为第三十一条,修改为:“男女双方自愿离婚的,准予离婚。双方必须到婚姻登记机关申请离婚。婚姻登记机关查明双方确实是自愿并对子女和财产问题已有适当处理时,发给离婚证。”
20. Article 25 shall be changed into Article 32. Two paragraphs shall be inserted as Paragraphs 3 and 4: “Divorce shall be granted if any of the following circumstances occurs and mediation fails:
(1)either party is a bigamist or a person who has a spouse but co-habits with another person;
(2)there is family violence or maltreatment or desertion of any family member;
(3)either party is indulged in gambling, drug-abuse or has other vicious habits and refuses to mend his or her ways despite of repeated admonition;
(4)both parties have lived separately due to lack of mutual affection for up to two years;
(5)other circumstances that have led to the nonexistence of mutual affection as husband and wife.
If either party has been declared by court as to be missing and the other party applies to be divorced, divorce shall be approved.”
   二十、第二十五条改为第三十二条,增加二款,作为第三款、第四款:“有下列情形之一,调解无效的,应准予离婚:
“(一)重婚或有配偶者与他人同居的;
“(二)实施家庭暴力或虐待、遗弃家庭成员的;
“(三)有赌博、吸毒等恶习屡教不改的;
“(四)因感情不和分居满二年的;
“(五)其他导致夫妻感情破裂的情形。
“一方被宣告失踪,另一方提出离婚诉讼的,应准予离婚。”
21.Article 26 shall be changed into Article 33 and shall be revised as: “The application of the spouse of a soldier in active service for divorce shall be subject to the approval of the soldier unless the soldier commits any grave fault.”
   二十一、第二十六条改为第三十三条,修改为:“现役军人的配偶要求离婚,须得军人同意,但军人一方有重大过错的除外。”
22. Article 27 shall be changed into Article 34 and shall be revised as: “The husband may not apply for divorce when his wife is pregnant or within one year after giving birth to a child or within six months after terminating gestation. This restriction shall not apply to the case where the wife applies for divorce or the people's court deems it necessary to accept the application of the husband for divorce.”
   二十二、第二十七条改为第三十四条,修改为:“女方在怀孕期间、分娩后一年内或中止妊娠后六个月内,男方不得提出离婚。女方提出离婚的,或人民法院认为确有必要受理男方离婚请求的,不在此限。”
23. Article 28 shall be changed into Article 35 and shall be revised as: “If, after divorce, both parties desire to resume their husband-and-wife relationship, they shall go through the registration procedures at the marriage registration authority.”
   二十三、第二十八条改为第三十五条,修改为:“离婚后,男女双方自愿恢复夫妻关系的,必须到婚姻登记机关进行复婚登记。”
24. Article 29 shall be changed into Article 36. Paragraph 1 shall be revised as: “The relationship between parents and children does not terminate due to the divorce of parents. After the divorce of the parents, the children remain the children of both parties no matter they are supported directly by either the father or mother.”
   二十四、第二十九条改为第三十六条,第一款修改为:“父母与子女间的关系,不因父母离婚而消除。离婚后,子女无论由父或母直接抚养,仍是父母双方的子女。”
25. One article shall be inserted as Article 38: “After divorce, the parent that does not directly bring up the children has the right to visit the children, and the other party has the obligation to give assistance.
The way and time for exercising the right of visiting children shall be agreed upon by the parties concerned. In case no agreement is achieved, they shall be decided by the people's court.
If the visit of either the father or mother is harmful to the soundness of the body and mind of the children, the said right shall be terminated by the people's court. When the reasons for terminating the said right disappear, the right shall be resumed.”
   二十五、增加一条,作为第三十八条:“离婚后,不直接抚养子女的父或母,有探望子女的权利,另一方有协助的义务。
“行使探望权利的方式、时间由当事人协议;协议不成时,由人民法院判决。
“父或母探望子女,不利于子女身心健康的,由人民法院依法中止探望的权利;中止的事由消失后,应当恢复探望的权利。”
26. Article 31 shall be changed into Article 39 and shall be revised as: “At the time of divorce, both husband and wife shall agree upon the disposal of the jointly owned property; if they fail to come to any agreement, the people's court shall decide the disposal thereof, taking into consideration the actual circumstances of the property and following the principle of favoring the children and the wife.”
A paragraph shall be inserted as Paragraph 2: “The rights and interests that both husband and wife enjoy in the contracted management of land shall be protected by law.”
   二十六、第三十一条改为第三十九条,修改为:“离婚时,夫妻的共同财产由双方协议处理;协议不成时,由人民法院根据财产的具体情况,照顾子女和女方权益的原则判决。”
增加一款,作为第二款:“夫或妻在家庭土地承包经营中享有的权益等,应当依法予以保护。”
27. An article shall be inserted as Article 40: “Where both husband and wife agree to separately own the property they respectively obtain during the existence of their marriage and either of them has spent considerably more effort on supporting children, taking care of the old or assisting the other party in work, etc, this party shall be entitled to demand the other party to make compensations at the time of divorce, and the requested party shall make compensations.”
   二十七、增加一条,作为第四十条:“夫妻书面约定婚姻关系存续期间所得的财产归各自所有,一方因抚育子女、照料老人、协助另一方工作等付出较多义务的,离婚时有权向另一方请求补偿,另一方应当予以补偿。”
28. Article 32 shall be changed into Article 41 and shall be revised as: “At the time of divorce, the debts jointly incurred by both husband and wife for the common life shall be paid out of the jointly owned property. If the jointly owned property is not enough to pay off the debts or if the property is individually owned, both parties shall agree upon the payment of the debts. If both parties fail to reach any agreement, the people's court shall decide on the payment of the debts.”
   二十八、第三十二条改为第四十一条,修改为:“离婚时,原为夫妻共同生活所负的债务,应当共同偿还。共同财产不足清偿的,或财产归各自所有的,由双方协议清偿;协议不成时,由人民法院判决。”
29. Article 33 shall be changed into Article 42 and shall be revised as: “If, at the time of divorce, either party has difficulties in life, the other party shall render appropriate assistance from his or her personal property like house, etc. Specific arrangements shall be agreed upon by both parties. In case no agreement is agreed upon, the people's court shall make a decision.”
   二十九、第三十三条改为第四十二条,修改为:“离婚时,如一方生活困难,另一方应从其住房等个人财产中给予适当帮助。具体办法由双方协议;协议不成时,由人民法院判决。”
30. One chapter “Remedies and Legal Liabilities” shall be inserted as Chapter V. Six articles shall be inserted as Articles 43 through 47 and Article 49.


Article 43 In the case of familial violence or maltreatment of any family member, the victim thereof shall be entitled to make petitions, and the villagers' committees, the relevant urban residents' committee, villagers' committee or the entity where the victim is a staff member shall make dissuasions or mediations.
The victim shall be entitled to make petitions concerning the familial violence that is happening, and the relevant urban residents' committee or villagers' committee shall make dissuasions, and the public security organs shall stop such acts.
Where the victim of family violence or maltreatment makes a petition, the public security organ concerned shall give administrative punishment to the actor according to the provisions on the administration of public security.
Article 44 Any member deserted by his or her family shall be entitled to make petitions, and the relevant urban residents' committee, villagers' committee or the entity where the victim is a staff member shall make dissuasions or mediations.
Where any person deserted by his or her family makes a petition, the people's court shall make a judgment concerning the payment of expenses for upbringing, supporting and maintenance.
Article 45 Criminal liabilities shall be meted out to bigamists and those who has committed familial violence or maltreated or deserted any family member so seriously as to have constituted a crime. The victim may file a private prosecution at the people's court according to the provisions of the criminal procedure law; the relevant public security organ shall make investigations and the people's procuratorate concerned shall make a public prosecution according to the provisions of law.
Article 46 In any of the following circumstances which has led to the divorce of husband and wife, the innocent party shall be entitled to claim damages:
(1) bigamy;
(2)cohabitation between a person who has a spouse but co-habitats with a third person;
(3) familial violence;
(4) maltreating or deserting any family member.
Article 47 If, at the time of divorce, any party conceals, transfers, sells or destroys the property jointly owned by both husband and wife, or fabricates any debt in an effort to seize the property of the other party, the person who conceals, transfers, sells or destroys any of the jointly owned property or fabricates any debt may, in the partition of jointly owned property, have a smaller or even no share. If any party discovers any of the afore-mentioned acts after divorce, he or she may file a suit at the people's court to apply for repartitioning the jointly owned property.
The people's court concerned may punish any of the acts that hampers the civil litigation concerning the afore-mentioned acts according to the civil procedure law.
Article 49 Where there are different provisions in other laws concerning the illegal acts and legal liabilities in the area of marriage or family, such provisions shall be followed.

   三十、增加“救助措施与法律责任”一章,作为第五章,增加六条,作为第四十三条至第四十七条、第四十九条:
(一)“第四十三条 实施家庭暴力或虐待家庭成员,受害人有权提出请求,居民委员会、村民委员会以及所在单位应当予以劝阻、调解。
“对正在实施的家庭暴力,受害人有权提出请求,居民委员会、村民委员会应当予以劝阻;公安机关应当予以制止。
“实施家庭暴力或虐待家庭成员,受害人提出请求的,公安机关应当依照治安管理处罚的法律规定予以行政处罚。”
(二)“第四十四条 对遗弃家庭成员,受害人有权提出请求,居民委员会、村民委员会以及所在单位应当予以劝阻、调解。
“对遗弃家庭成员,受害人提出请求的,人民法院应当依法作出支付扶养费、抚养费、赡养费的判决。”
(三)“第四十五条 对重婚的,对实施家庭暴力或虐待、遗弃家庭成员构成犯罪的,依法追究刑事责任。受害人可以依照刑事诉讼法的有关规定,向人民法院自诉;公安机关应当依法侦查,人民检察院应当依法提起公诉。”
(四)“第四十六条 有下列情形之一,导致离婚的,无过错方有权请求损害赔偿:
“(一)重婚的;
“(二)有配偶者与他人同居的;
“(三)实施家庭暴力的;
“(四)虐待、遗弃家庭成员的。”
(五)“第四十七条 离婚时,一方隐藏、转移、变卖、毁损夫妻共同财产或伪造债务企图侵占另一方财产的,分割夫妻共同财产时,对隐藏、转移、变卖、毁损夫妻共同财产或伪造债务的一方,可以少分或不分。离婚后,另一方发现有上述行为的,可以向人民法院提起诉讼,请求再次分割夫妻共同财产。
“人民法院对前款规定的妨害民事诉讼的行为,依照民事诉讼法的规定予以制裁。”
(六)“第四十九条 其他法律对有关婚姻家庭的违法行为和法律责任另有规定的,依照其规定。”
31. Article 34 shall be deleted.
   三十一、删去第三十四条。
32. Article 35 shall be changed into Article 48 and shall be revised as: “In case any person refuses to execute the judgment or decision on the payment of expenses for upbringing, supporting or maintenance, the partitioning or inheritance of property or visiting the children, the execution may be enforced by the people's court in accordance with the law. Relevant persons and entities shall be responsible for giving assistance to the enforcement.”
   三十二、第三十五条改为第四十八条,修改为:“对拒不执行有关扶养费、抚养费、赡养费、财产分割、遗产继承、探望子女等判决或裁定的。由人民法院依法强制执行。有关个人和单位应负协助执行的责任。”
33. Article 36 shall be changed into Article 50 and shall be revised as: “The people's congresses of the autonomous regions and the standing committees thereof are empowered to formulate adaptations according to the specific conditions of the marriage and family of the ethnic group of the local place. The adaptations formulated by the autonomous prefectures and counties become effective after being ratified by the standing committee of the people's congress of the corresponding province, autonomous region, or municipality directly under the Central Government. The adaptations formulated by the autonomous regions become effective after being ratified by the Standing Committee of the National People's Congress.”
This Decision shall come into force as of the promulgation date.
The Marriage Law of the People's Republic of China shall be re-promulgated after the amendments have been made and the sequential numbers of the articles shall be adjusted according to this Decision.

   三十三、第三十六条改为第五十条,修改为:“民族自治地方的人民代表大会有权结合当地民族婚姻家庭的具体情况,制定变通规定。自治州、自治县制定的变通规定,报省、自治区、直辖市人民代表大会常务委员会批准后生效。自治区制定的变通规定,报全国人民代表大会常务委员会批准后生效。”
本决定自公布之日起施行。
中华人民共和国婚姻法》根据本决定作相应修改并对条款顺序作相应调整,重新公布。
     
     
【法宝引证码】        北大法宝www.lawinfochina.com
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