Research On The Conflict And Coordination Between The Marital Property Regime And Rules Of The Law Of Obligation

The marital property regime refers to those rules that regulate the marital property relationship,which include the marital property’s attribution(gain),alternation,rights,debts,clearing and division,etc.The marital property relationship doesn’t exclude rules of property law.Moreover,the marital property relationship regime should obey the basic principles of property law,and there must be enough legal basis when it would break the basic principles.There are conflicts on the debt relationship between the marital property regime and the Law of Obligation.Firstly,that is the identification of the nature of marital debt.On the circumstance of getting into debt on wife’s or husband’s own,article 24 of the Interpretation II of the Supreme People’s Court about Several Problems Concerning the Application of the Marriage Law of the People’s Republic of China presumes it to be marital common debts,except that the debt was agreed as personal debt when it was set up,or the couple take the separate property system and the creditor knew the fact,or the debtor and the creditor set up the debt with malicious collusion,or the debt was used for gambling,taking drugs and other illegal activities.However,the debt will be affirmed as personal debt on the same condition according to the creditor’s right and the principle of relativity.Secondly,that is the liability of satisfaction on the marital common debts.The Marriage Law and the judicial interpretations require the couple taking the related discharge duty.However,the Law of Obligation separate the different causes of the debts with variant responsibility,which including the limited liability and the related discharge liability.The Partnership Law is the typical representative.Thirdly,that is the legal character and application of the gift act between wife and husband.The agreement between the couple that the wife(or husband)give her(or his)property to the other one will cause different legal effects if it is identified with different characters.It will comply with the Marriage Law if it is charged as the contractual marital property system,which stipulates the circumstance will change the property’s ownership directly without abiding the general rules of property changing.What’s more,the donor won’t have the arbitrary right of revocation if it is comply with the Marriage Law.However,the gift act will comply with the Contract Law if it is affirmed as contract of gift that is ruled by the article of 186.In which situation that the donee only have the right claim to the donor transferring the ownership of the subject matter,and the donor have the arbitrary right of revocation before the transferring of the ownership of the subject matter,even if the ownership has been transferred,there’s legal right of cancellation protect the donor’s property right.The conflicts between rules reflect the conflict of interests.The problem can be solved by means of the interests balancing theory that values the interest between different parties.There are some principles should be obeyed,which include equal protection principle,priority of public interests,reservation of law,principle of proportionality,etc.There are two aspects advantage of the interests balancing theory,on one side,it can be used to solve the conflict between rules,in which the law doesn’t make the boundary of application.On the other side,the interests balancing theory can also re-scan the rules in use.As the principle of legislation and justice,the interests balancing theory can be used in every stage of legal activities.If there are unreasonable rules,according to the theory,the legislative institution will adjust the rules or the judiciary authorities will return a fair verdict.The coordination of the conflicts between the marital property regime and the Law of Obligation can refer to the interests balancing theory.As the promulgation of the General Provisions of the Civil Code of China,the enacting of the specific provisions is under development.In the process of the enacting,the most important thing is keeping the coordination with each other,which are both the principle of the Civil Code on the unity and the request of the legal basis of legislation.What’s more,the civil law is the typical representative of private law,it must follow the basic principles of private law.There are some main principles in private law,which include equity and equality principle,principle of autonomy of will,principle of public order and good morals,principle of honesty and credibility,etc.Further instructions include the principle of the private rights protection,which is the most important principles and direct the enacting of the specific provisions.Improve private rights protection include two aspects:on the one hand,the relationship with public power,which cannot over-interference the private rights field;on the other hand,the meaning of private rights include private rights sacred,autonomy of private law,personal liability,etc.We should pay more attention on the secondary meaning.The Marriage Law,as a part of the Civil Code,should also follow the basic principle of the private rights protection.To be specific,the rules between the couple,especially the property rules,should lay emphasis on the protection of the private rights.When it comes to conflicts between rules,do not damage any party’s private rights easily,if it must be,we should offer the alternative compensation.With the help of the above theories,we can solve the conflicts between the marital property regime and the Law of Obligation.Firstly,that is the identification of the nature of marital debt.We should balance every party’s interests,at the same time,we should also keep coordinating with the rules of Obligation Law,in this regard,daily housework agent system will help us to solve the conflict.Secondly,that is the liability of satisfaction on the marital debts.There are two ways to solve the problem:one is that re-design the rules of identification of marital debt,in which there’s no need to distinguish the nature of marital debts,and use the same liability of satisfaction;another is that distinguish the nature of marital debts and use the different liabilities of satisfaction.Thirdly,that is the gift between the couple.To solve this problem,we need to analyze the legislation model of the contractual marital property system in the Marriage Law,the necessary of free on constitute of the gift contract,the couple’s special identity on the constitute of the gift contract,etc.