The Concept Of Contract On The Change And Tether Of Marriage

Since the founding of new China, focused on the evolution of marriage andfamily system, It is from1950to1980"marriage law" revised "marriage law" to the2011"marriage law" amendment, Marriage legal system is very important in ourcountry. Marriage system has a long history, and the structure of marriage systemreflects the people's perspective and position of marriage to some extent. Intraditional theory, there are many theories about marriage: the ethics theory, the lovetheory, the identity theory, the system theory and the contract theory. In recent years,there are partnership theory and Covenant relationship theory after the traditionaltheories, but in essence, they do not surpass the contract theory. Contract theory wasborn in Western countries, and it has been accepted by more and more countries withthe development of the times."Marriage Law" has the concept of marriage contractfully from the spirit of the legislation, although the contract theory is not explainedas the general theory clearly in our country's text books. Marital relationship willdevelop with social development, and marriage contract theory will be furtherdeveloped and improved. It relies on how we design and construct the marriage oursystem. The marital relations theory reflects marital consciousness and marital idea.It combines the observation and our pondering of marital culture."To understandand reshape our marriage" is author's aspect, this aspect reveals basic mission ofmarriage law. How to understand the marriage and how to locate the marriage decidenot only the marriage law but also its system design. It further instructs the maritaljudicature practice, and finally affects the anticipation to the marital understanding.Therefore, the marital relations theory always becomes the substantive foundation ofmarriage system. In our country, the basic theory research of marital family law is relatively weak.It needs scholars to study the marital relations theory comprehensively andthoroughly. We should use marital relations theory to read legislation practice fromthe aspect of academic exploration. In traditional principle, the related maritalrelations understanding are divided into several schools, such as ethics school, loveschool, status school, system school, contract school and so on. In author's point ofview, contract school is more compatible to the contemporary marriage autonomousreality. In this article, the author reads the marriage from a new point of view andexamines the marital legislation of our country carefully In this article, the authorintroduces relations contract theory to our country, and it is the front of the contracttheory. This article content mainly minutes following five parts:The first part is an overview of marriage contract. It will distinguish thedifference between the concept of marriage contract and the traditional concept, andthen pursues ancient traces to analyze origins and generalization of the marriagecontract theory deeply. Then it concludes that the marriage not only creates acontractual relationship in its own development, but also creates one status, so thecontract standard could enter the status domain. Marriage contract adjusts both statusrelationship and the property relationship. In this part I cleared the substantivecharacteristics of marriage contract and the difference from traditional contract. Thenthis part stated the marriage contract's essence formation to conclude that themarriage is a civil contract which possesses ethicality.The second part is the review of "marriage law" under the concept of "marriagecontract". Our country present "Marriage law" respects the litigants' free will,whatever in adjusts the personal relationship or property relationship between thehusbands and wives sufficiently. Simultaneously,"Marriage law" has manifested themarriage articles spirit and the idea fully by regulating the action that violates publicorder and kind custom and other action against people's benefit. We analyze themarriage contract theory and review the marriage legislation, in order that we cantreat our marriage more clearly and rationally. And through legal regime's design, prevents latent which in the marriage exists not to be equal, encourages the maritallitigant long-term pledge, reciprocal sharing, And through the design of the legalsystem to prevent the potential in equality in marriage to encourage long-term andmutual benefit sharing in marriage parties. In order that they can distribute marriageresources rationally and the freedom of marriage and the social justice could berealized finally.The third and fourth chapter is research on the relational contract theory. Whenthe standard contract theory face "the decline" and "perished" under the crisisbackground, the relational contract theory, proposed by American scholar, hadadvocated to set the contract in the entire social background and then gave to analyze,establishing a new school. He believed that contract is process which related on planof future exchange. Therefore, the scholar proposed his contract concept to be therelational contract. Relational contract theory is the subversion to a classical contracttheory, under the relational contract field of vision, the marital contract attribute canobtain a better annotation, many marriage systems and the principle may also beinferred from the relational contract theory. The relational contract theory hasprovided the rationale for the husbands and wives joint property system, the divorceproperty fair division, the reasonable limit on free divorce, the divorce allowancesystem as well as state intervention and individual autonomous in the marital and soon. Whether marriage has exchange and choice is essential premise. In contemporarysociety, the marital litigant has the full option. In marital, exchange is extremelyuniversal, but the marital exchange and the general exchange relations are different,its way involves a longer time and many types of repayment. Therefore, the marriagehad the essential factor to become the premise of contract. The characteristic ofmarriage had further decided that the marriage is one kind of relational contract. Themarital characteristic is long-term, the marital content is not complete, the maritallitigant's relation is opposition and the unification, the function of relational standardand the social norm in the marital is widespread. All of these show that the marriageand the relational contract were extremely similar, therefore, the marriage could regard as the relational contract.The fifth chapter is "examines our country marriage legislation according tothere contract theory. On a comprehensive survey of our many systems and theprinciple may either infer from the relational marital law system, contract theory, ormay consist with the marital relational contract model. In this chapter, the authorintroduces the marriage system, relation-ship of couples, divorce and the division ofproperty. Why we examine the marital legislation with the relational contract theoryof marriage? The goal is to understand our marriage rationally. If we inspect themarriage in a wider social background, we can understand the relational standardmore correctly. We should put the social norm and the legal standard in the sameconnection, handle the process of the marital litigant's opposition and unification,coordinates the litigant individual autonomous and the state intervention correctly.And through the design of our legal system, we can distribute the marriage's benefitrationally, prevent unequal in divorce, punish the marriage opportunism behavior,encourage the litigant to have along-term investment and reciprocal benefit sharing,and finally realize the freedom of marriage and justice.