In a legal sense, "revocation" refers to the extinguishment of the legal effect of "pre-existing events or acts" by the act of revocation. "Revocation" is a protective measure after "existing events or acts" infringe on one's legitimate rights and interests, and is a right to relief. So "revocation" is achieved by exercising the "right of revocation". "Revocation" is fundamentally different from "invalidity", "rescission" and "retrospectiveness".

1. The difference between "revocation" and "invalidity".

"Revocation" is a right whose exercise results in the classification of the object of revocation as "invalid". Therefore, "invalidity" is only a legal status. There are essential differences in the properties of the two. And the two are often confused. From the result point of view, the result of "revocation" is null and void ab initio, while the result of "invalidity" is also null and void ab initio, and there seems to be no difference.

However, "revocation" first leads to "invalidity" and then produces the result of invalidity ab initio, which is precisely due to the correlation of a "state of change of behavior".

"Invalid" is the opposite of "valid", and "revocation" is one of the reasons for the conversion of both. Because "invalidity" is a state confirmation, it will not change without the influence of factual or behavioral factors.

"Revocation" is a right that the right holder may or may not exercise, and only if the right holder legally exercises the right of revocation, a change from "valid" to "invalid" may occur. To put it simply, revocation is a blanket denial of an existing act, and an existing act that has not been lawfully revoked is not automatically invalid.

2. The difference between "revocation" and "revocation".

"Revocation" and "rescission" are both rights. However, there is a clear difference between the objects of rights of the two, and revocation extinguishes the legal effect of the previous act, while the revocation extinguishes the legal effect of the subsequent act. The figurative point is that "revocation" is looking forward, and "lifting" is looking backward. Moreover, the object of revocation can be an immediate behavior or a persistent state, but the object of revocation is often only a persistent state.

So what is immediate behavior and continuous state? For example, a marriage relationship is a continuous state, and registering a marriage is an immediate act.

Therefore, the termination of marriage may be revoked or dissolved if the conditions are met, and the annulment of marriage will classify the marriage as an invalid marriage, and the dissolution of the marriage relationship is divorce. Registered marriages, on the other hand, may be revoked but not dissolved. Because once the marriage is registered, the marriage is established, and the only thing to be dissolved at this time is the marriage relationship and not the original marriage registration. It should be noted that divorce is not the dissolution of marriage registration, but a separate divorce registration.

3. The difference between "revocation" and "recognition".

"Recognition" is an amendment that turns an act with a defective effect into a valid legal act. According to the provisions of the Civil Code, "posthumous recognition" mainly exists in four situations: first, restricting a person with civil capacity to carry out acts beyond his or her own capacity, which must be recognized by his legal representative, otherwise it is an invalid act; Second, in the agency relationship, the principal can "retrospectively" the agent's self-agency, sub-agency, non-authorized agency, etc., so that these defective behaviors become legal and effective agency acts.

If the principal does not recognize it, under normal circumstances, these acts will be borne by the agent and will not have legal effect on the principal.

However, except for those constituting the form of an agent; Third, in a causeless management relationship, the beneficiary can retroactively recognize the administrator's behavior, making the causeless management act a legal and valid entrusted agent act; Fourth, the debt recognized by the debtor's spouse is a joint debt of the husband and wife, otherwise there is a dispute as to whether the debt constitutes a joint debt of the husband and wife because it is not a joint debt of the husband and wife.

In the case of the above four situations without posthumous recognition, there are certain defects in validity or disputes, and can only be amended into legal and valid civil legal acts after the relevant stakeholders "recognize".

In other words, "retrospective" is to transform the "defective effect" state into a "valid" state, while "revocation" is to transform the "valid" state into an "invalid" state. Therefore, we can see that "revocation" and "recognition" have the opposite effect.

2. Grounds for revocability

The so-called "revocable cause" means that the law provides that the party is given the right of revocation because of the cause, thereby extinguishing the legal effect of the specific act.

"Revocable causes" can generally be divided into three categories: (1) capacity deficiencies, the acts of persons without civil capacity are invalid, and the acts of persons with limited civil capacity beyond their capacity can be revoked by a bona fide counterparty; (2) Violations and infringements, illegal acts and infringements are not necessarily invalid, some can be converted into validity through posthumous recognition, and their original validity can also be negated by revocation.

However, violations of mandatory provisions and acts that harm the public interest are necessarily null and void; (3) Defective meaning: Before the Civil Code came into effect, different laws had different provisions on the grounds for revocability, such as: the reasons for revocability stipulated in the General Principles of the Civil Law were: (1) material misunderstanding; (2) Obvious unfairness. The grounds for revocability under the General Provisions of the Civil Code are: (1) material misunderstanding; (2) fraud; (3) coercion; (4) taking advantage of people's dangers; (5) Manifest unfairness.

The grounds for revocability under the Contract Law are: (1) material misunderstanding; (2) manifest unfairness; (3) fraud; (4) coercion; (5) Taking advantage of people's dangers. The grounds for revocation under the Marriage Act are: (1) coercion. The Civil Code, which came into effect on January 1, 2021, has reorganized these laws,

It stipulates the grounds for revocability to: 1. Restrict the conduct of a person with civil capacity; 2. Acts based on material misunderstandings; 3. Acts committed fraudulently; 4. Acts committed by fraud by a third party; 5. Acts committed by coercive means; 6. Acts that are manifestly unfair (taking advantage of people's danger). The "grounds for revocability" are the basis for the establishment of the "right of avoidance".

3. Exercise of the "Right of Revocation"

As mentioned above, the "right of avoidance" is a remedy right, which is the right to protect one's legitimate rights and interests from infringement, and is aimed at illegal facts or acts. The law provides for many kinds of avoidance rights, such as contract rescission rights, shareholders' revocation rights, creditors' right of revocation, marriage revocation, etc.

The right of revocation is one of the very important systems for the legal protection of legitimate rights and interests, but after all, once the right of revocation is exercised, it may make the existing acts invalid, which will essentially change the original legal relationship and bring a series of chain effects, so the Civil Code makes relevant provisions on the prudent exercise of the right of revocation:

1. The person who enjoys the right of revocation is called the person with the right of revocation. The right of revocation can only be exercised by the person with the right of revocation and is not exercised by others. This is because the holder of the right of revocation is often the interested party in the relevant interest.

2. The right of revocation may or may not be exercised, and may be waived but not transferred.

3. If the right of revocation is not exercised, the legal relationship or legal act is not invalidly changed, that is, it is valid from the beginning.

4. Once the right of revocation is legally exercised, the legal relationship or legal act is invalid from the beginning.

5. The right of revocation shall be exercised within one year from the date on which the cause of revocation was known or ought to have been known, and within 90 days from the date on which the party with material misunderstanding knew or should have known of the cause of revocation. It should be noted that Article 152 of the Civil Code specifically stipulates: "If the parties do not exercise the right of revocation within five years from the date of occurrence of the civil legal act, the right of revocation shall be extinguished." "The period for exercising the right of revocation is a period of exclusion and may not be suspended, interrupted or extended.

4. Circumstances in which a marriage may be revoked

A voidable marriage, i.e. the existence of voidable grounds for the marriage gives the parties to the marriage the right of annulment. Of the six grounds for revocability under the Civil Code, there are only two situations of coercion and fraud in the case of marriage. Articles 1052 and 1053 of the Marriage and Family Part of the Civil Code stipulate that a marriage that may be revoked is a coerced marriage and a marriage in which a serious illness is concealed.

The original Marriage Act only provided for the annulment of a coerced marriage and defined a void of marriage if you suffered from a disease that was medically considered unfit for marriage. However, in judicial practice, there is no clear definition of what constitutes a disease that is medically considered unsuitable for marriage.

Moreover, the prohibition of marriage if you have a related disease is too extreme and suspected of discrimination by illness, which is not in line with the value orientation of legal equality. However, marriage involves both parties, and the protection of the rights and interests of both parties should be balanced.

In the case of one party concealing a serious illness, it may affect the other party's intention to enter into marriage. Therefore, it is a practical legislative advance for the Civil Code to take "concealment of a major illness" as the cause of revocation of the right of annulment of the marriage of the concealed party. It can be seen that the so-called fraudulent marriage is only considered "fraudulent" when it is "concealed of a major illness", and not "fraudulent marriage" in the broad sense of fictitious conditions, rhetoric, false promises, etc.

Coerced marriage, as explained in Article 10 of the original Judicial Interpretation I of the Marriage Law, refers to the situation in which the perpetrator forces the other party to marry against his true will by threatening to cause damage to the life, physical health, reputation, property, etc. of the other party or his close relatives. It can be seen that the intention of the coerced person to marry in a coerced marriage is not a genuine voluntary marriage, and it is natural to classify it as a voidable marriage.

However, it should be noted why is a coerced marriage not directly invalidated, rather than requiring the coerced party to exercise the right of annulment?

In fact, if the coerced marriage is directly stipulated as invalid, it seems very just, but there may also be two problems: 1. For the coerced party, the nullity of marriage means that he does not need to perform his conjugal obligations and bear marital responsibilities, and even formally can "marry", and this "treatment" is obviously not compatible with his illegal behavior. 2. For the coerced party, if the change of mind after marriage recognizes the marriage and the two parties have children and the family relationship is happy and harmonious, then the nullity of the marriage has obviously become a discordant contradiction.

Therefore, it is not necessarily beneficial to the coerced party to directly determine that the coerced marriage is an invalid marriage, and it is not appropriate to adjust the complex marital relationship issues in a one-size-fits-all manner, so it is more practical to give the coerced party a right similar to choice, that is, it can revoke the marriage contracted under duress by exercising the right of annulment. If the coerced party voluntarily decides not to exercise the right of revocation, the marriage should be valid ab initio, and in a certain sense, it is also binding the coerced party on the marital responsibility.

In addition, if the marriage registration authority has defects in the marriage registration procedure, it may claim revocation through administrative reconsideration or administrative litigation. Such annulments are directed at the specific administrative act of marriage registration, not at the marriage itself. After the revocation of a specific administrative act, a new specific administrative act can be re-made, which plays the role of "correction".

What is annulled for a marriage that has been coerced and defrauded is the marriage itself, which plays the role of "extinguishing". These two essential attributes of revocation are different, the former is aimed at "administrative acts", and the latter is the civil marriage "annulment".

5. Exercise of annulment of marriage

According to the foregoing, the right of annulment can only be exercised by the counterparty (the coerced or concealed party) in a coerced marriage and a marriage in which a serious illness is concealed, and the perpetrator (the coerced or concealed party) cannot claim annulment on the grounds of coerced marriage or concealment of illness to avoid marital responsibility. However, the other party may not abuse the right of annulment and use the right of annulment as a ground for divorce.

For example, in a coerced marriage, the coerced party accepts the marriage relationship after marriage and does not advocate annulment of the marriage, but in the subsequent marriage life due to family conflicts leading to the breakdown of feelings, at this time, the marriage is not through the divorce procedure but on the grounds of the original marriage coercion to request the annulment of the marriage, which is an abuse of power.

Therefore, the right to annulment of marriage also applies to the period of revocation, which the coerced party shall exercise within one year from the date of termination of the coercive act, or within one year from the date of restoration of personal freedom if the coerced party is restricted in personal freedom.

The exercise of the right of revocation for concealed marriage with major illness shall be exercised within one year from the date on which the concealed party knew or should have known the concealed facts, and failure to exercise it in a timely manner will result in the extinction of the right of revocation. It should be noted that Article 152 of the General Provisions of the Civil Code clearly stipulates that the maximum limitation period for the right of revocation is five years.

That is, "if the party does not exercise the right of revocation within five years from the date of the occurrence of the civil legal act, the right of revocation shall be extinguished". This means that if the counterpart in the marriage in which the serious illness was concealed was not discovered for more than five years, the right of revocation is extinguished.

In coerced marriage, under normal circumstances, the coercive act is at the time of marriage, and the limitation period for the right of revocation is also calculated one year from that time, and will not be affected by the maximum limitation period of five years. However, in a special case where the coerced party has been restricted in his personal liberty (more common in the case of "buying a wife" crime) for more than five years, if the right of revocation is extinguished because of the five-year maximum limitation period, it clearly loses its value of legal protection.

Therefore, the Marriage and Family Part of the Civil Code makes special provisions on the limitation period for the right of annulment of a coerced marriage where personal freedom is restricted, so as to give priority to the maximum limitation period stipulated in the General Provisions, that is, the right of annulment of marriage is exercised within one year from the date of restoration of personal freedom.

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