| Marital property system includes legal property system and contractual property system.In our country,the common income system is the legal marital property system,which is the continuation of the traditional concept of marriage and family of cohabitation and common wealth,and also accords with the understanding of the majority of the people to the marriage community.However,in recent years,due to the expansion of the private right consciousness caused by the sharp increase of personal wealth,and the influence of the western marriage concept,the contract property production is a kind of mode in which the parties freely deal with the marital property relations,which is highly respected among the young couples who emphasize mutual independence.On the one hand,it is the rapid popularization of the agreed property system and its growing importance.On the other hand,it is the simple status of the agreed property system legislation in our country.In addition,there are still many deficiencies in the current academic research on the system.Under the combined effect of these factors,the core of the agreed property system-that is,the marital property system agreement research.Marital property system agreement and contractual property system are two legal concepts that are closely related and different.To be exact,the latter is the theoretical basis and applicable basis of the former,and restricts the concrete content of the former;The former is the realization form of the latter,without the former,the latter will have no effect.So specifically,what is a matrimonial property agreement?This involves the basic theory of the property system agreement,is also the logical starting point of this article.It also includes the definition,nature and application of the agreement.In the definition,the so-called marital property system agreement,refers to:husband and wife or soon become husband and wife,on the marital property outside the validity of the marital property relations,excluding or partially exclude the application of the legal property system agreement.This means that property relations deriving from the validity of marriage,such as marital maintenance obligations or day-to-day household agency rights,and property relations arising from non-marital particularities,such as loans or gifts between spouses,cannot be the subject of such agreements.Property agreement is special in nature.It is subordinate to the status of husband and wife,but the content of property relations,which determines the dual nature of it is not a simple identity or property,but between the two acts of identity property.Scholars have always been arguing about the nature of such agreements,the focus of scholars is actually the application of the law of such agreements.But in my opinion,no matter how to determine the nature of such an agreement,it should not lead to differences in the application of its law,that is,the priority should be applied to the provisions of the law of relatives,in the case of unclear provisions of the law of relatives,the general rules of property law can be applied in principle.In the scope of application,the specific performance type of property system agreement depends on the legislative mode of agreed property system.In theory,under the optional property system,the content of the property system agreement can only be selected among several property systems set up by law;In the original contractual property system,the parties can create the content of the agreement freely,as long as the content involves the change of the legal property system.Traditionally,scholars believe that article 19 of the marriage law of our country is a kind of closed legislation,that is,the system of contractual property of choice.But I think,from the text of this article and legislative style,the actual is an open,that is,the use of the original system of agreed property.In our country,as long as the property agreement between husband and wife involves the change of legal effect of legal property system,the agreement belongs to the category of property system agreement.In our country,as long as the property agreement between husband and wife involves the change of legal effect of legal property system,the agreement belongs to the category of property system agreement.In particular,it needs to be clarified that the spouses'agreement on the attribution of specific property(including part of the property and individual property),even if it is to the extent that the property of one party is owned by the other,is a matrimonial property agreement rather than a gift contract.At present,our country on the agreed property system,including the property system agreement related legislation,is still very simple.With the exception of article 19 of the marriage law,few other legal provisions directly related to it can be found.Based on the empirical analysis of the judicial practice of property system agreement between 2010 and 2017,we can find the legislative defects at this stage.In addition to the unclear scope of application of the agreement,the most important is focused on the effectiveness of the agreement.It also includes the lack of legislation in the confirmation of the validity of the agreement and the lack of legislation in the result of the agreement.On the one hand,in the part of validity determination,because the marriage law lacks a clear criterion for validity determination of this kind of agreement,in practice,when the judge determines whether the specific agreement is valid,invalid,modifiable or revocable,he can only rely on the legal act or the general valid requirement of the contract.But the property system agreement identity attribute,or the parties in the identity of the particularity,but also makes the general principles of the civil law or contract law principle norms,many times can not reasonably determine the effectiveness of such agreement.For example,coercion between husband and wife is usually threatened by divorce,but this coercion is not within the scope of civil law said coercion;Another example is the major misunderstanding in property agreement,which is usually a mistake in legal cognition or motive.Although these mistakes are universal,they can not be protected according to the general principles of civil law or contract law;The common view of judicial practice is that the rule of obvious unfairness is not applicable to the dispute of property system agreement,because the ethical and altruistic nature of husband and wife identity makes the property distribution in the agreement,and its fairness can not be measured by equivalent compensation,but the marriage law is more emphasis on fairness than the general property law,and how to judge whether the agreement is fair or not.On the other hand,in the part of the effect result,although article 19 of the marriage law stipulates the internal effect and the external effect of the agreement with two or three paragraphs respectively,but the meaning of the binding force of the internal effect is not clear,which leads to the legal effect of the agreement between husband and wife in practice,such as the effect of donation,the effect of debt and the effect of real right.Three very different judgments.At the same time,principle 19--the validity of the General Colonel agreement is limited withirn the couple,unless the agreement meets the legal requirements of the confrontation,which is understandable,but also in line with international legislative practice.However,article 19 takes the third person as the condition that the agreement produces the external effect,and the protection of the parties to the agreement,especially the non-leveraged spouse,is obviously not perfect,which not only makes the provisions of the external effect gradually reduced to concrete,but also has the extreme case that the judgment result is obviously unfair in practice.If the judicial practice in the property system agreement on the validity of the problem is the effectiveness of the standard of such agreement to carry out special regulation of the practical needs,then in my view,compared with commercial contracts,such agreement contains potential injustice,the special regulation of the theoretical basis and the fundamental motivation.These potential injustices are caused by the special status of the parties,for example,the conclusion of an agreement may be the result of abuse of trust by one of the parties;For example,the division of labor or the emotional commitment to marriage,the parties will lead to a serious difference in bargaining power;For example,marriage is a dynamic relationship,and changes in the marital environment will also have a negative impact on the fairness of the agreement.In other words,property agreements are more likely to be an unfair result than commercial contracts.Therefore,we should at least modify the general rules of the contract,or construct a different set of rules to deal with these potential injustices.In fact,in view of the above problems,the traditional civil law legislation will also carry on the special regulation to the property system agreement,but the regulation key point does not lie in the special potency standard construction,but in the agreement conclusion time,the form and the content stratification plane,proposed the extra request to this kind of agreement conclusion or the validity.The legislation hopes to limit the autonomy rights of the parties in the marital property relationship through this form,so as to reduce the adverse effect of unfair agreement on the parties.On the one hand,this stopgap approach excessively interferes with the parties'freedom of contract,such as the legislative reasons for restricting the time for concluding an agreement,even has the obvious legal principle flaw;On the other hand,the practice effect is not ideal,the judges have legal form but obviously unfair property system agreement,lack of control.As to how to construct the validity standard of property system agreement in China,the author thinks that American law can provide us with useful guidance.Although the marriage agreement in the United States is different from the property agreement in the civil law system,the same subject requirements of the two determine the limitations of the two in the conclusion of the factors or potential unfair is similar,so the United States law in dealing with this issue advanced legislative experience,also worthy of our reference.In order to unify the interstate conflict of laws on the validity of marriage agreement,the United prenuptial agreement act of 1983 and the United prenuptial and marriage agreement act of 2012 have been enacted in the United States.From the content of the two bills,the most obvious change of the new bill is to improve the standard of procedure review of effective marriage agreement.It not only regards the obligation of disclosure of property information and the obligation of giving up the right to inform as independent elements,but also requires the parties to have equal access to the possibility of employing independent lawyers.The main purpose of this is to ensure that the conclusion of the agreement is the true meaning of the weaker party and the result of careful consideration.At the same time,in the substantive review,the new bill on how to grasp the fair content of the agreement,but also provide their own ideas.Based on the detailed analysis of the legislative evolution of the two bills mentioned above,as well as the legislative reasons behind them and the summary of advanced experience;The author thinks that the construction of the validity standard of the property system agreement in China should refer to the practice of the United States,and change from the logic of consequences to the logic of procedure.On the one hand,to improve the procedural requirements of the effective property system agreement,to remove the potential defects of the declaration of intention in the process of making the agreement by means of procedural coercion,to ensure that the contents and consequences of the agreement can be understood by the parties,and is his rational choice;On the other hand,it recognizes the cautious attitude of judicial practice in the application of the rule of obvious unfairness and respects the freedom of the parties to dispose of their private rights.At the same time,it introduces the rule of change of circumstances to avoid the change of the marital environment that the parties can not or can not foresee.In addition,the existing law on the effectiveness of the property system agreement on the results of vague and inadequate.The author thinks that in the part of internal effect,the effect of this kind of agreement in husband and wife is special.The binding force of article 19 of the marriage law actually means that it can directly cause the transfer of property rights.The author agrees in principle with the current theory and practice of such binding is the real effect interpretation.But on the one hand,as to the cause of this kind of real right effect,in this paper,the theory of real right change based on creditor's right intention is more reasonable than the theory of real right change based on non-legal act;On the other hand,because the thing is not the whole performance type of the property,so real right effect can not completely summarize the special binding force of this kind of agreement,so it seems more reasonable to call it validity of marriage property law in theory.It should be noted here that,due to the special nature of other types of property,such as equity or intellectual property,the specific performance of the binding force of the property regime agreement on the transfer of such property will also change to a certain extent.In the part of foreign effect,legislation should be clear about the specific scope of the third party at the same time,the confrontation of the property system agreement elements of reconstruction,that is,to add such an agreement publicity system,in order to achieve the interests of the third party and the interests of husband and wife balanced protection. |
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