Relational Contract Perspective Of Marriage And The Marriage Legislation

How does the law adjust the marital relations? It relies on how we design and construct the marriage our system. The marital relations theory reflects marital consciousness and marital idea. It combines the observation and our pondering of marital culture. "To understand and reshape our marriage" is author's aspect, this aspect reveals basic mission of marriage law. How to understand the marriage and how to locate the marriage decide not only the marriage law but also its system design. It further instructs the marital judicature practice, and finally affects the anticipation to the marital understanding. Therefore, the marital relations theory always becomes the substantive foundation of marriage 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 and thoroughly. We should use marital relations theory to read legislation practice from the aspect of academic exploration. In traditional principle, the related marital relations understanding are divided into several schools, such as ethics school, love school, status school, system school, contract school and so on. In author's point of view, contract school is more compatible to the contemporary marriage autonomous reality. In this article, the author reads the marriage from a new point of view and examines the marital legislation of our country carefully. In this article, the author introduces relations contract theory to our country, and it is the front of the contract theory.The full text besides the introductory remarks, divides into five chapters. It is approximately 200,000 characters.The first chapter is historical contract view in marriage and its theory reconsidering. Contract view in marriage is long-standing. In Roman law, marital agreement principle had already covered the certain contract factor in the church marriage law. In bourgeois revolution time, contract view in marriage had official formation. But in this time, marriage right duty still needed to suffer many interventions and the limit from the national law. It was allowed to say that contract view in marriage was one kind of "the status contract" at that time.Some scholars also thought that contract view in marriage stimulated the egotism and the opportunism, weakened the legal stable function of maintenance marriage. They criticized that it has created loss of the woman and the child welfare. Facing these questions, the author profoundly reconsidered the meaning of contract, the contract has certainly not repelled ethics, the contract certainly did not mean that it did not have a limit, the autonomous of contract can not be understand only as an unlimited freedom contract. The law is not the only mechanism which the contract forced. We changed to the relational contract under the field of vision, only then, we could understand the characteristic of the marital contract well.The second chapter is research on the relational contract theory. When the standard contract theory face "the decline" and "perished" under the crisis background, the relational contract theory, proposed by American scholar, had advocated 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 plan of future exchange. Therefore, the scholar proposed his contract concept to be the relational contract.Relational contract theory is the subversion to a classical contract theory, under the relational contract field of vision, the marital contract attribute can obtain a better annotation, many marriage systems and the principle may also be inferred from the relational contract theory. The relational contract theory has provided the rationale for the husbands and wives joint property system, the divorce property fair division, the reasonable limit on free divorce, the divorce allowance system as well as state intervention and individual autonomous in the marital and so on.The third chapter is relational contract attribute of marital relations. Whether marriage has exchange and choice is a essential premise. In contemporary society, the marital litigant has the full option. In marital, exchange is extremely universal, but the marital exchange and the general exchange relations are different, its way involves a longer time and many types of repayment. Therefore, the marriage had the essential factor to become the premise of contract. The characteristic of marriage had further decided that the marriage is one kind of relational contract. The marital characteristic is long-term, the marital content is not complete, the marital litigant's relation is opposition and the unification, the function of relational standard and the social norm in the marital is widespread. All of these show that the marriage and the relational contract were extremely similar, therefore, the marriage could regard as the relational contract.The fourth chapter is marital model under relational contract. In the marital legislation, if the marital litigants do not have an agreement, potential rules will become the important rule which adjusts marriage relations. But two rational litigants usually can choose the marital model. In the agreement there still contains limitation on the litigant's autonomous. It will be able to have some legal rule limitation on marriage litigants' choices, mainly including the freedom of the contract.Regarding the rule hypothesis of divorce property division, in the ordinary circumstances, principle on dividing the property equally is just, but the equal division of property can sometimes produce a unequal exploitation on investment If we want to make it equal, we have to take "appropriation investment cost opportunity" into account.The fifth chapter is "examines our country marriage legislation according to the relational contract theory". On a comprehensive survey of our country marital law system, many systems and the principle may either infer from the relational contract theory, or may consist with the marital relational contract model. In this chapter, the author introduces the marriage system, relation-ship of couples, divorce and the division of property.Why we examine the marital legislation with the relational contract theory of marriage? The goal is to understand our marriage rationally. If we inspect the marriage in a wider social background, we can understand the relational standard more correctly. We should put the social norm and the legal standard in the same connection, 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 benefit rationally, prevent unequal in divorce, punish the marriage opportunism behavior, encourage the litigant to have a long-term investment and reciprocal benefit sharing, and finally realize the freedom of marriage and justice.The innovation of this article lies in: 1. I provide a new method and the point of view to understand the marriage relations; 2.I analyse the marital relational contract attribute in detail; 3. through constructing the contract in advance, I provide a model formulation foundation to the default rules of marriage law; 4. I examine the marriage legislation in our country with the relational contract theory comprehensively, and put forward certain legislation proposals; 5. In the divorce relief system, I propose a new divorce income balanced system.