埃塞俄比亚联邦最高法院对超生重婚的司法承认：法律空白还是司法立法？

IF 0.2 Q4 LAW

African Journal of Legal Studies Pub Date : 2020-09-30 DOI:10.1163/17087384-12340066

J. Chewaka

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引用次数: 0

摘要

根据埃塞俄比亚《家庭法》和《刑法》，重婚已被宣布为非法，尽管在埃塞俄比亚有着广泛的做法。本文审查了联邦最高法院最高上诉对重婚影响的司法承认的合法性及其对婚姻监管的影响。文章结合联邦最高法院关于重婚的选定裁决，将法律解释原则并列，审查了现行家庭法的实质内容。文章认为，联邦最高法院最高上诉法院承认非法重婚，即使是出于救济目的，也相当于司法立法行为。法院基于司法机构在必须将重婚问题作为“社会现实”加以解决的幌子下填补空白的作用所作的推理，偏离了家庭法现行规则的目的，这些规则旨在规范一夫一妻制婚姻。

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Judicial Recognition of Outlawed Bigamous Marriage in Ethiopian Federal Supreme Court Cassation: Legal Gap-Filling or Judicial Lawmaking?

Bigamous marriage has been outlawed under the Family and Criminal Codes of Ethiopia despite its wide practice in Ethiopia. This article examined the legality of judicial recognition of the effects of bigamous marriage by the Federal Supreme Court Cassation and its implications for the regulation of marriage. The article reviewed the substance of the current family laws in light of selected decisions of Federal Supreme Court Cassation on bigamous marriage by juxtaposing principles of legal interpretation. The article argues that the recognition of outlawed bigamous marriage by the Federal Supreme Court Cassation, even for relief purposes, amounts to an act of judicial law-making. The Court’s reasoning based on the gap-filling role of the judiciary under the guise of the necessity to address problems of bigamous marriage as a ‘social reality’ deviates from the purpose of the current rules under the family law that were deliberately designed to regulate monogamous marriage.

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来源期刊

African Journal of Legal Studies LAW-

CiteScore

0.30

自引率

0.00%

发文量

期刊介绍： The African Journal of Legal Studies (AJLS) is a peer-reviewed and interdisciplinary academic journal focusing on human rights and rule of law issues in Africa as analyzed by lawyers, economists, political scientists and others drawn from throughout the continent and the world. The journal, which was established by the Africa Law Institute and is now co-published in collaboration with Brill | Nijhoff, aims to serve as the leading forum for the thoughtful and scholarly engagement of a broad range of complex issues at the intersection of law, public policy and social change in Africa. AJLS places emphasis on presenting a diversity of perspectives on fundamental, long-term, systemic problems of human rights and governance, as well as emerging issues, and possible solutions to them. Towards this end, AJLS encourages critical reflections that are based on empirical observations and experience as well as theoretical and multi-disciplinary approaches.