Li Yinhe talks about sex

Chapter 30 Be wary of going backwards when amending the Marriage Law
When amending the Marriage Law, we must be wary of retrogression, of going back to the irrational era, and stop making the whole world laugh at us as we did during the Cultural Revolution.

Some Opinions Advocating Regression when Amending the Marriage Law

Recently we have heard some opinions on amending the Marriage Law.It is said that the current marriage law is too general and lacks operability.For example, the grounds for divorce are too simple.The Divorce Law stipulates that the relationship between husband and wife has really broken down and the mediation is invalid is the legal ground for adjudicating divorce.There should be nothing wrong with gradually improving the law to make it more user-friendly.However, in addition to this, we have also heard some disturbing opinions, such as hoping to "make divorce more difficult" and "punish third parties" through this revision of the Marriage Law.In my opinion, when amending the Marriage Law, we must be wary of retrogression, and we must prevent this revision of the Marriage Law from damaging the freedom of divorce that Chinese citizens have gradually won since the reform and opening up.

About "Making Divorce Harder"

The current divorce law divides divorce into two categories, one is divorce voluntarily by both parties, and the other is divorce requested by one party.The two are handled very differently.The conditions for voluntary divorce are: the husband and wife agree to divorce; the children and property issues have been properly dealt with.It's that simple and straightforward.I think the law is good and quite modern.The United States has only had this form of divorce in recent decades, and they call it "no-fault divorce."This form of divorce is most consistent with the principles of freedom of marriage and freedom of divorce.In fact, the right to decide is completely in the hands of both parties: whether they choose to be together or not, everything is determined by the will of both of them.

I don't know if people who advocate "making divorce more difficult" want to make it more difficult for both parties to voluntarily divorce (maybe not including this type of divorce, only referring to the type of divorce requested by one party)?If they really want to make it more difficult for both parties to voluntary divorce, I think there are probably the following motivations:

First, I worry that some couples have not really considered maturity and will regret it after they approve the divorce.This concern is not unreasonable, because some divorce decisions may not be made in the best of both worlds.If this is the case, give them a fixed period of time and ask them to think about it calmly. It should be said that it is not too much to ask.There are similar provisions in foreign divorce laws and regulations.But my opinion is that this period of consideration does not need to be too long, 3-6 months is enough.Because after such a long time, the divorce decision of both parties has not changed, any longer is meaningless, and it is pure torture.Deliberate torture should never be a motive for a law in any way.

Second, from a micro perspective, divorce is considered to be a purely bad thing for both parties, and non-divorce is a purely good thing, so it is necessary to increase the difficulty of bad things happening.The premise of this judgment is wrong.For the parties concerned, divorce is not a purely bad thing, nor is staying together a purely good thing.Some marriages have died or become a torture for both parties. In this case, divorce is not a bad thing, it can even be a good thing, and it is a relief for the parties.Therefore, this reason is not sufficient.We should not increase the difficulty of extricating a party from a predicament.

Third, from a macro perspective, divorce is considered a purely bad thing for society, and non-divorce is a purely good thing, so it is necessary to increase the difficulty of bad things happening.This judgment is also difficult to justify.Why is divorce necessarily a bad thing for society, not a good thing?
The society is made up of families, and the family is the smallest part of the social unit.We can analyze whether divorce is purely a bad thing for the family.Experience surveys have shown that for children's growth, some family environments with bad parental relationships are not as good as those after divorce. Therefore, from the perspective of children's interests, divorce is not necessarily a bad thing for society.

From the analysis of the good or bad service of the divorced party to the society, divorce is not necessarily a bad thing.Comparing individuals in poor marriages with divorced individuals, the efficiency of social services for the latter is no worse, and perhaps even stronger than that of the former.Because the divorced person will feel lonely, and the bad marriage relationship often makes the parties feel tortured and painful.Moreover, while the former had the opportunity to form a harmonious and happy new relationship, the latter did not.Which of the two will work better for society?
Some people think that divorce is not conducive to social stability.I think this judgment has a premise: the marriage relationship itself is a factor of social stability, and its destruction is the destruction of social stability and order.Those who hold this view believe that married people are a factor of social stability compared to unmarried people.They are restrained by their spouses and children, and they have responsibilities, so it is less easy for them to do risky things.But the relationship between a person's marital status and social order is not so direct and obvious.Married people also commit crimes and participate in things that cause social unrest.Most unmarried people are also people who follow the rules and are not necessarily a factor of social instability.In contrast, employment status, education level, etc. are more important and more direct factors for social stability: the unemployed and those with low education levels are more statistically significant among criminals.In the Nordic countries, the proportion of married people among all residents is much lower than that in China, but their social stability is not lower than that of our country. This is the evidence that marriage status has little relationship with social stability.

If this argument can be established, we have no reason to think that divorce will affect the stability of society.In other words, the judgment that divorce affects social stability is a false causal relationship.Starting from common sense, people often believe in a false causal relationship, but in fact this causal relationship does not exist.If the causal relationship that divorce affects social stability does not exist, we cannot conclude that divorce is a purely bad thing for society.

Furthermore, the dissolution of a dead marriage may not only be a factor that destabilizes society, but a factor that maintains it, a measure to reduce the tension of interpersonal conflicts. In the relationship between two people, the tension will increase; and if the relationship between the two people is dissolved, the tension may be eliminated, and the possibility of dangerous conflicts will be reduced (statistics show that a large proportion of murder and injury crimes are between people who are related or emotionally connected, not between strangers).In addition, the two parties after divorce may establish a new harmonious marriage relationship. From this perspective, it should be considered that divorce is a good thing rather than a bad thing.

If the idea of ​​increasing the difficulty of divorce refers to increasing the difficulty of cases such as one party's request for divorce, I don't understand what this opinion specifically refers to.The current marriage law has set considerable difficulties for divorce, such as the regulations on the separation time of the two parties when one party disagrees; the regulations on the prohibition of reintroduction of divorce proceedings within half a year after the first divorce lawsuit is judged not to allow divorce, etc. .

When the marriage law was amended this time, some people proposed to punish the wrong party in terms of property division.I think this proposal is not unreasonable, but the divorce process will become much more complicated.If the fault of one party is used as the basis for property division and economic punishment, it is necessary to collect evidence for the fault, and the degree of difficulty of this work will not be very low.In addition, some divorce cases that could have been negotiated may be submitted to the court for judgment because of the need to clarify the wrong party and the corresponding financial punishment and property division, which will greatly increase the workload of the court.Of course, legal procedures cannot be simplified just out of trouble.The most important thing is justice.The comrade who put forward this suggestion also noticed that in a divorce case, in addition to the situation where one party is at fault, there are also two situations where neither party is at fault or both parties are at fault.In both cases, measures to penalize one party do not apply.

About "Punishing the Third Party"

Some people have suggested that for extramarital affairs, which destroy other people's marriages, the law should stipulate that the damage should be stopped and the loss should be compensated.If such amendments are made to the Marriage Law, the following problems may arise:
First of all, an extramarital affair is a matter for which both parties are responsible, and it is unfair to punish only the third party; and if both parties involved in the extramarital affair are punished, then one spouse (the one who engages in the affair) will be punished by the other (the one who did not). The party engaged in an extramarital affair) compensates for the loss.And this approach lacks operability.

Secondly, this legal suggestion seems to be made in the absence of statistical data as a basis: sociological survey statistics in Western countries show that the incidence of extramarital sexual relations is generally around 43%.The incidence rate in China may be much lower, but even if only 20% of people engage in extramarital affairs, the workload of investigation and evidence collection for law enforcement will reach astronomical figures.It may not be very feasible for the society to spend a lot of manpower and financial resources to investigate extramarital affairs.And if a law is enacted but not enforced, it will become what Westerners call "blue law" in name only.This legal setting loses its meaning.

Third, the legislative idea of ​​sanctioning third parties is not conducive to conforming to international practices.In the laws before 1980, it seems that the third party who engaged in extramarital affairs was sentenced to 2-3 years in prison. This practice is extremely rare in the world (except for a few Arab countries or countries that believe in Islam).I believe that the comrades who propose to increase the punishment for extramarital affairs when amending the Marriage Law will not advocate going back to the level of arresting and sentencing the "third party". What they think in their minds may be compensation for economic losses and compensation for spiritual losses (this can let us relax a little bit) in one go).

But even so, the fairness and feasibility of this compensation should still be considered: both parties to an extramarital affair should be punished, not just the third party (note that in most cases, the third party is a woman, because statistics show that the There are more husbands who have extramarital affairs than wives who have extramarital affairs - in the United States: about 60% for husbands, about 25% for wives).If the new law only punishes the "third party", it will result in a situation where women are much more punished than men, which will damage the status of women in our country and the principle of equality between men and women.It is really difficult to punish both parties—for example, if it is stipulated that the husband and the lover each give a sum of money to the injured wife, there must be a premise: the couple is separated financially, and many Chinese couples are married. After the property is not divided.

To sum up, my opinion is not to add legal provisions to punish extramarital affairs.According to the common practice in the world, the best punishment for extramarital affairs is divorce.Of course, it is possible to consider giving financial punishment to the party who has an extramarital affair during divorce, but this is repeated with the second section of the divorce law on punishing the wrong party.Therefore, I think that as long as there is a punishment for the wrong party in the divorce process, it is enough, and there is no need to establish a separate law to punish extramarital affairs.

A New Trend of Thought Against Monogamy in Modern Society
In the contemporary West, a new social theory—queer theory—is in the ascendant.Queer theory is a challenge to the monogamous relationship that has been practiced in human society for thousands of years, and it shows the possibility of new human relationships and new ways of life.Queer theorists ask many big and subversive questions, such as: Why does a society have to practice monogamy?Why can't you have a lover?Why not get married?Why can one only have sex with one person?Why can't we have an open sexual relationship?Why can't we have open relationships?Why do you have to have children?wait.These theories are by no means fantasized by a few radicals, they are a direct reflection of people's latest social practice, and they are a challenge to tradition by people's newly created interpersonal relationships.

Foucault points out: "We live in a world of human relations in which institutions have become rather impoverished. The societies and institutions that regulate this world limit the possibility of human relations, because a world rich in human relations manages Too complicated...the fact is that we live in a world of legal, social, and institutional relationships that are extremely rare, simplistic, and pathetic. Of course, there are some basic marriage and family ties, but How many relationships should exist!..." For thousands of years, people have lived in these basic marriage and family relationships, and they have long been accustomed to them, and have never designed and imagined other types of lifestyles and interpersonal relationships. Without even realizing that there was a possibility for these relationships.No one has imagined or tried a rich and colorful human relationship other than marriage, such as a relationship that is not only different from monogamy but also emotionally and sexually invested.

It's the 20s, and people all over the world are experimenting with all kinds of relationships.For example, in the Nordic countries, married people and cohabiting people have reached an even ratio (close to 90:[-]).In China, the relaxed atmosphere since the reform and opening up has also made the cruel and inhuman practices of the Cultural Revolution (including divorce lawsuits for more than a dozen years; legal or administrative punishment for extramarital affairs) slowly disappear.People began to call for humanity and advocate rationality.When amending the Marriage Law, we must be wary of retrogression, of going back to the irrational era, and stop making the whole world laugh at us as we did during the Cultural Revolution.

(End of this chapter)