論婚姻無效的制度構建

我國學界長期以婚姻無效制度對標合同無效制度，但二者的價值結構和立法目標存在重大差異。狹義婚姻無效制度涉及國家對公民婚姻權利的限制問題，可以用比例原則對其正當性進行檢驗。疾病作為婚姻無效事由不符合必要性原則和狹義比例原則，相關規則應予廢除。婚姻可撤銷規則的正當性需經表意人注意義務、婚姻主旨、公共利益三項標準的檢驗。通謀虛假婚姻的撤銷不符合公共利益，不應准許撤銷。欺詐婚姻中，僅在一方刻意隱瞞其患有不宜結婚疾病、有持續性犯罪惡習、性功能障礙或性取向時，婚姻可以撤銷。因當事人未履行注意義務造成的錯誤婚姻，不應准許撤銷。婚姻宣告無效的法定財產性後果，應視財產結合是否符合當事人真實意思，分情況予以決定。

In China, the rules of annulment of marriage has been considered as similar to the annulment of contract. However, there are some significant differences between them in the value structure and legislative goal. The narrow-sense annulment of marriage rules concerns the state's restriction on citizens marriage rights, and its legitimacy can be tested by the principle of proportionality. Disease as the cause of invalid marriage does not conform to the principle of necessity and the principle of narrow-sense proportionality. The relevant rules should thus be abolished. The legitimacy of the revocation rules of marriage should be tested by three conditions: the spouse's duty of care, the purpose of marriage and the public interest. Conspiracy marriages do not conform to the condition of public interest and should not be revoked. In fraud marriages, a marriage can be revoked only if one party intentionally conceals that he or she is suffering from unfit-marriageable diseases, persistent criminal habits, sexual dysfunction and sexual orientation. The error marriage should not be allowed to be revoked if the spouse fails to perform his or her duty of care. The legal property consequences of invalid marriage shall be decided according to different circumstances, depending on whether the property combination conforms to the true will of the spouses.