| 英文摘要 |
With China’s economic and social development and demographic changes, the premarital medical examination system, as the intersection of marriage, fertility, and family planning policies, has been modified between compulsory and voluntary in different legal hierarchies. The relevant recording and review cases, one of which was listed in the annual recording and review working report (2021) again, frequently occur with different combinations of higher-level review basis and contentious provisions” between different levels of regulations. Here involved not only the review of Article 5 of the Marriage Registration Regulation according to Article 12 of the Maternal and Infant Health Law as advocated in the citizen’s review suggestion, but also Article 1053 of the Civil Code highlighted in the review and research opinion of the Legislative Affairs Committee of the NPCSC, as well as the Heilongjiang Maternal and Infant Health Regulation mentioned in another case on the same subject. That is to say, the dispute over premarital medical examinations spans from local regulations, administrative regulations, general laws, and fundamental laws to the Constitution, presenting a unique phenomenon of “normative conflict with the higher neighboring level while consistent with next much higher level.” In regards to cases with the same subject matter recurring in multi-level regulations, it is appropriate to gather cases on the same topic and adopt a contrastive legality analysis method. In other words, it is suggested to outline three normative models of substantively compulsory premarital examination, formally compulsory premarital examination, and voluntary premarital examination presented in different levels of regulations as contrastive items, and place them in three logical case scenarios of “aware and consenting before marriage,” “aware and consenting after marriage,” and “aware but non-consenting after marriage,” and contrast respectively the performance of three models in three scenarios in terms of personal dignity, freedom of marriage, and quality of the birth population, by the intent of “maximizing respect and protection of fundamental rights,” and arrive at an optimal solution at last. Unlike analysis of substantial matters purely, the comparative legality analysis reveals “a composite structure between the norms review theory and entity content theory”. |
