论婚姻登记的功能——自合同法理的角度

婚姻登记的功能问题尚未引起学界的重视,但实务中与此相关的纠纷或者案件却常常发生。对于婚姻登记的功能这个问题,可以从合同法理这个新角度予以探讨。视婚姻为合同的思想由来已久且很有价值,但这一价值迄今没有得到充分的重视和发挥。用合同的法理考察透视婚姻,婚姻登记的形式审查、效力确认和公示公信功能就会被挖掘出来。这其中的法理之所以类似于物权契约,其根本原因就在于结婚和离婚均属于身份法上的处分行为。

On the Function of Marriage Registration -Viewed from the contract law theory

The function of marriage registration has not yet received academic attention. However, many disputes and cases concerned with it occur in everyday life. This problem can be studied from the new viewpoint of contract law theory. The idea of regarding marriage as a contract is valuable, but this value has not received adequate attention. Looking at marriage in the perspective of contract law theory, it is not hard to see that the function of marriage registration includes examination, confirmation, publicity and credibility. The legal principle here is similar to that of a real right contract, for marriage or divorce can be classified into the part related to personal status law.