I. Correct understanding of "invalidity" in the legal sense

What is "invalid"? The meaning of the word is interpreted as having no effect, so "invalid" in the legal sense means that it does not have legal effect. So what is legal effect? The main purpose of the law is the protection of rights and interests, and the norms of conduct or punitive measures stipulated by the law are all aimed at protecting legitimate rights and interests. Therefore, having legal effect should be protected by the law and bound by the law without harming other legitimate rights and interests. In law, acts with legal effect are called "legal acts", "legal acts" in the civil field are "civil legal acts", and marriage is a "civil legal act". Article 143 of the Civil Code stipulates that "a civil legal act is valid" needs to meet three conditions: 1. The actor has the capacity for civil conduct; 2. The intention of the actor is true; 3. The behavior does not violate the mandatory provisions of laws and administrative regulations, and does not violate public order and good customs. It can be seen that the first two items are aimed at the perpetrator, which is relatively easy to understand both "capable" and "real-minded", while the third is for the act itself, that is, the behavior that violates the mandatory provisions of laws and administrative regulations or violates public order and good customs is an "invalid" act and has no legal effect. Articles 144 to 146, 153 and 154 of the Civil Code classify "invalid civil acts" into the following five situations:

1. The perpetrator does not have the corresponding capacity for civil conduct

Perpetrators can be divided into persons with full capacity for civil conduct, persons with limited capacity for civil conduct and persons without capacity for civil conduct according to their different capacity for civil conduct. Article 144 of the Civil Code clearly stipulates: "A civil legal act performed by a person without civil capacity is null and void. Article 145 of the Civil Code stipulates: "A civil legal act that restricts a person with civil capacity to perform a purely beneficial civil act or a civil legal act appropriate to his age, intelligence and mental health condition is valid; Other civil legal acts carried out are valid after the consent or posthumous recognition of the legal representative. "Civil acts other than those are generally deemed invalid. In principle, the acts of persons with full capacity for civil conduct are valid as long as they are not invalid as stipulated by law.

2. The perpetrator's intention is untrue and false

The untrue expression of the perpetrator's intention is mainly manifested in situations such as false expression, material misunderstanding, coercion and fraud, and taking advantage of people's danger, etc., and the Civil Code only clearly stipulates that "false expression" is invalid, while other circumstances are revokable. Article 146 of the Civil Code stipulates that "the civil legal act carried out by the actor and the counterparty with false intention is invalid." "The most typical example is that in the process of house sale, in order to reduce taxes, the buyer and seller agreed on a lower transaction price of the house sale on the online signing contract and declared the relevant transaction taxes, and the two parties agreed on the actual transaction price of the house sale through a supplementary agreement. Since the agreement on the transaction price of the housing transaction in the online signing contract is a "false representation" of both parties and is invalid, it is not binding on both parties. However, it should be noted that if the invalid agreement in the online signing contract involves the interests of a third party, the two parties shall not oppose the bona fide third party on the grounds of invalidity.

3. Violation of mandatory provisions of laws or administrative regulations

The first paragraph of Article 153 of the Civil Code stipulates: "Civil legal acts that violate the mandatory provisions of laws and administrative regulations are invalid. "The so-called mandatory regulations, also known as mandatory norms, are the norms of behavior that people must abide by, and people are not allowed to change or violate them freely. Mandatory norms can be divided into obligatory norms and prohibitive norms, which stipulate what people must do, and if they do not do it, they are illegal, such as supporting the elderly. Prohibitive norms dictate things that people can't do, and if they do it, they break the law, such as banning gun ownership. Therefore, of course, illegal acts that violate mandatory provisions cannot be protected by law and should be invalid.

4. Contrary to public order and good customs

The second paragraph of Article 153 of the Civil Code stipulates: "Civil legal acts contrary to public order and good customs are invalid. "Although the law can protect legitimate rights and interests by formulating mandatory provisions, it is inevitable that no matter how complete the legal protection is, it is incomplete for complex social behaviors, and the limitations of the legal lag determine that relying only on mandatory norms is not enough to protect legitimate rights and interests." In addition, there are some behaviors in reality that although they are not illegal, they objectively harm the public interest. Therefore, the law advocates public order and good customs, public order is public order, and good customs are good customs. Acts contrary to public order and good customs will inevitably harm the public interest and should not be protected by law. For example, the gift of major property of the "Little Mistress", although the act of gift is not illegal, but the "Little Three Phenomenon" violates public order and good customs, so the gift is legally invalid.

5. Malicious collusion harms the legitimate rights and interests of others

Article 154 of the Civil Code stipulates: "A civil legal act in which the perpetrator and the counterparty maliciously collude to harm the lawful rights and interests of others is invalid." "Malicious collusion belongs to the subjective will of the perpetrator, and the objective consequence is manifested as damage to the legitimate rights and interests of others, and such intentional acts of harming others will certainly not be protected by law." It should be noted that compared with acts contrary to public order and good morals, the latter involve more public interests, while this is a personal interest, and obviously the degree of harm is different. Therefore, any harm to the public interest, whether subjectively intentional or negligent, should be invalid. Whether it harms personal interests is invalid or not needs to consider subjective factors, that is, whether there is a subjective intention of malicious collusion. For example, in order to avoid debts, A sells its fixed assets to B in exchange for working capital for easy hiding and transfer, thereby harming the interests of creditors. If B is aware of A's intentions and cooperates with him and maliciously colludes in transactions, the sale and purchase shall be invalid. If B is not aware of this, because there is no malicious collusion between A and B, the sale is not invalid.

2. Legal provisions for nullity of marriage

"Invalidity" in the legal sense mostly refers to the invalidity of the act. In the case of nullity marriage, marriage is not an act but a state, a relationship state resulting from the act of marriage. Marriage and marriage are different in nature but there is a causal relationship, because the marriage state is created by the act of marriage, so only the invalidity of the act of marriage can lead to the invalidity of the marital state. The act of marriage follows the principle of voluntariness, so there is no problem of "false expression of intent" and "malicious collusion to harm the legitimate rights and interests of others". Whether the act of marriage is valid depends on whether it violates the mandatory provisions of laws or administrative regulations or whether it violates public order and good customs.

Articles 1042, 1047 and 1048 of the Civil Code stipulate ten prohibited acts on marriage issues, which are mandatory provisions of the law. Once violated, the acts involved are not only invalid, but also bear certain legal responsibilities. However, these invalid acts are not necessarily acts of marriage, so they do not necessarily lead to marriage invalidity, and need to be analyzed here:

(1) It is forbidden to arrange or buy and sell marriages. Arranged marriage and sale of marriage actually include two acts, one is the arranged and bought and sold act with the interference of a third party, and the other is the act of marriage between the parties. The invalidity of arranged or bought and sold acts does not mean that the marriage act is necessarily invalid. Typical arranged marriages such as dolls, the marriage contract between parents is not protected by law because it is invalid and does not bind the children. And for the sale of marriage, it is naturally impossible to obtain legal recognition and protection. However, if the parties concerned have registered their marriage as a result, it is not just to simply find it invalid. Because the invalidity of the act of marriage means that the marriage relationship has not been established, then the maintenance obligation between the husband and wife stipulated by law does not arise, which may bring even worse consequences to the weak party. For example, when the woman is arranged for marriage, and the man abandons the woman and marries again, there may be logical obstacles to her determination of illegality. Thus, the act of marriage in this case is not ipso facto invalid, nor is the marriage relationship established ex officio invalid, and the law confers other remedies to preserve substantive justice.

(2) It is forbidden to interfere with the freedom of marriage. As with the prohibition of arrangement, sale and purchase of marriages, there are two acts: the act of interference is invalid, while the act of marriage is not automatically invalid, nor is the marriage established.

(3) It is forbidden to solicit property through marriage. It is essentially a fraudulent act, that is, asking for a dowry, dowry and other property on the grounds of intending to get married, and generally does not occur in the end. Even if there is an act of marriage, because the issue of payment of property is inevitably involved in marriage, there is a problem of ambiguity in the boundary of what is normal payment of property and what is the demand for property through marriage. Therefore, the law only prohibits the extortion of wealth through marriage, and does not therefore touch on the issue of the validity of marriage, that is, the act of claiming wealth through marriage is invalid, but it does not necessarily affect the validity of the act of marriage.

(4) Bigamy is prohibited. To constitute bigamy, there must be an act of remarriage or an act of coexistence sufficient to qualify as a de facto marriage, which is invalid in accordance with the prohibition of the law and inevitably leads to the invalidity of bigamy. It should be noted that the invalidity of bigamy does not affect the legal validity of the original marriage.

(5) It is forbidden for a spouse to cohabit with another person. That is, "illegal cohabitation", but since "illegal cohabitation" is not equivalent to marriage, there is no problem of "marital arts". It should also be noted that "illegal cohabitation" does not affect the legal validity of the original marriage.

(6) Prohibition of domestic violence. Such acts are marital acts, not marital acts, and although prohibited by law, they do not affect the validity of marriage.

(7) The prohibition of abuse of family members and acts of domestic violence, although prohibited by law, does not affect the validity of marriage.

(8) The prohibition of abandonment of family members and acts of domestic violence, although prohibited by law, does not affect the validity of marriage.

(9) It is forbidden for men to marry before the age of 22 and women before the age of 20. The law sets on the age of marriage, and if the act of marriage violates this mandatory provision, the marriage established is null and void.

(10) It is forbidden to marry direct blood relatives and collateral blood relatives within three generations. Commonly known as "marriage of close relatives", it violates the mandatory provisions of the law and does not conform to the public order and good customs of society, so the act of "marriage of close relatives" is an invalid act, and the marriage relationship established is of course invalid.

In summary, Article 1051 of the Civil Code summarizes invalid marriages into three types: (1) bigamy; (2) Having a kinship that prohibits marriage; (3) They have not reached the legal age of marriage. Before the Civil Code came into effect, the Marriage Law listed "suffering from a disease that was medically considered unfit for marriage before marriage and has not been cured after marriage" as one of the circumstances of invalid marriage.

However, although "those who suffered from diseases that were medically considered unfit for marriage before marriage and have not been cured after marriage" have no specific criteria for recognition in judicial practice, and have been criticized for suspected discrimination by patients. However, to a certain extent, there is a first-line remedy space for the validity of the registration of marriages by persons who lack civil capacity. Because the reason for lack of civil capacity is either the age of minors or pathological factors of mental illness that cannot recognize behavior. The invalidity of a minor's marriage act due to lack of civil capacity corresponds to the invalid marriage situation of "under the legal age of marriage", but the invalidity of the marriage act of a person with pathological lack of civil capacity cannot correspond to the three invalid marriage situations stipulated in the Civil Code. Therefore, there is a serious logical contradiction in legislation, that is, the marriage act of a person with mental illness and no capacity for civil conduct is an invalid act according to Article 144 of the General Provisions of the Civil Law, but the marriage relationship established on the basis of the invalid act cannot find an invalid legal basis. For those high-net-worth individuals who are "married" after losing their civil capacity due to mental illness, they will face considerable challenges.

3. A null and void marriage may be transformed into a valid marriage if the conditions are met

Null and void marriages can be divided into absolute nullity marriages and relatively invalid marriages. The so-called absolute nullity marriage refers to a marriage that is not affected by other conditions and is in a state of invalidity from beginning to end, and bigamy and marriage with a kinship that prohibits marriage (commonly known as consanguineous marriage) are absolutely invalid marriages. A relatively invalid marriage refers to a marriage in which the invalid state is transformed into a valid state due to the achievement of certain specific conditions, and a marriage that is not married at the legal marriageable age is a relatively invalid marriage.

In marriages that are married before the legal age for marriage, this status of nullity is temporary, since sooner or later the age of the parties will reach the legal age of marriage. In the absence of other marriages, the period of marriage before that time is invalid and the parties may request confirmation of the annulment. However, if the two parties still maintain a "husband and wife relationship" after this point, the legal effect of marriage begins to occur from then on, which is a natural modification of the legal state. It should be noted that once this relatively invalid marriage has been naturally modified into a legally valid marriage, the parties' claim that the marriage is invalid will no longer be supported by law.

Similarly, in the case of bigamy, if the bigamous marriage was established at the time the original marriage had not been dissolved, the original marriage was dissolved after the bigamous marriage had been established. At this time, because the bigamy marriage no longer has the illegal situation of repeated marriage, can it be converted into a valid marriage like a relatively invalid marriage? There is still controversy over this, and it is affirmed that if the illegal situation is considered to have been dissolved, in order to maintain the stability of the marriage, the subsequent (bigamous) marriage should be recognized and amended. The negative theory holds that bigamy is an illegal act that seriously undermines the principle of monogamy and should not be denied by subsequent amendments, so bigamy is absolutely null and void, and there is no room for amendment to be converted into legality. However, in judicial practice, the number of positive cases is on the rise.

4. An invalid marriage is null and void ab initio

The premise of an invalid marriage is "marital status", and if there is no "marital status", there is naturally no basis for judging whether it is valid or not. Therefore, the marital state must exist first, and the question of judging its validity must come later. From the moment it is judged that it is invalid marriage, the subsequent so-called "marital status" can no longer be called "marriage", but a relationship between another man and a woman. So is the "marital status" before the judgment determined at this moment valid? The answer given by the law is clear, null and void marriage is null and void ab initio, that is, it has been null and void since the establishment of the "marital status". The conclusion of the judgment of invalid marriage is both a characterization of past invalidity and a declaration of future invalidity.

(This article is translated by software translator for reference only.)