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比较我国事实婚姻处置制度与美国普通法婚姻和日本内缘婚等类似于大陆事实婚姻,虽然均立基于契约理论,但是在不同的社会传统和司法体制下,朝着不同的方向发展。普通法婚姻成立条件严格,法律效果广;内缘婚成立条件相对宽松,法律效果基于个案公平而不同。此代表事实婚姻立法的两种潮流,两者理论基础,构成要件及法律效果及形成的原因等比较,可为我国事实婚立法提供一定的启示。
Compared with China’s factual marriage system and the common law marriages in the United States and Japan’s inner marriage, similar to the factual marriage in mainland China, although both are based on the contract theory, they develop in different directions under different social traditions and judicial systems. The establishment of common law marriage is conditional and the legal effect is wide. The conditions for establishment of inner marriage are relatively loose, and the legal effect is based on the fairness and variety of cases. This represents two kinds of tide of the legislation of factual marriage, the comparison of the theoretical basis, constitutional elements and legal effects of the two and the reasons for their formation, which can provide some enlightenment for the legislation of de facto marriage in our country.