Researching On The Contractual Marital System

Family is an important constituent of the society. As the number of family, husband and wife are important elements of the society. Among all the conjugal relations, the spouse's property relation is an important one. It decides the distribution between the spouses, and also relates to the safety of transaction, the benefits of the third-party, the economic order of society and so on. So, many country consider the legislation of marital property system as the basic system in Marriage Law or Relativity Law。In the system of marital property system, the legal property system and contractual property system are tow corresponding systems. The spouse's contractual property system follows the contractual principles of equality and willingness. It embodies the equal status of man and woman in the family and complies with the trend of economic. So, more and more countries affirmed it. The spouse's contractual property system has a long history. Its embryo can be rooted to Old Roman. But the present spouse's contractual property system is founded on the basis of the modern spouse's contractual property system. In our country, making the contract of the spouse's property was put forward in the 1980 year's Marriage Law, but it was not systematized until 2001 year's Marriage Law. During the 20 years after 1980 year's Marriage Law, our country's social economy has developed with a high speed, and the relation of property has been complicated and diversified. As the same time, the request of the independence of marital property is enhancing gradually and the consciousness of individual right are boosting up ceaselessly, it is a trend to pay much more attention to the promissory marital system and amend it. The amendment of the Marriage Law in 2001 complied with this trend. It made a more comprehensive formulation about this system. But we can't neglect that even the amendment of the Marriage Law in 2001 revised the promissory marital property system, but it still has a lot of minus. In this article, the author will make a research on the concept, theory foundation, evolution and etc. And then, analyze the actual provisions and the defects of present legislation and put forward some suggestions on improving the contractual property system of China. The article is chiefly expounded through four respects:In the first part, the author sketched the spouse's contractual property system, introduced the concept and the development of the spouse's contractual property system.In the second part, the author expounded the foundation of the spouse's contractual property system from its theory and institution aspect. The spouse's contractual property system has an extensive foundation in institution aspect around the world, including our country and many other foreign countries. Many countries legislate this system. The spouse's contract on property is a civil contract in essence. But it is signed by wives and husbands, so it has a peculiarity.In the third part, the author introduced the present provision of the current Marriage Law of our country, pointed out the disadvantages of it. The disadvantages include: lack of the essentials of the contract, alteration and withdrawal procedure of the contract, how to establish external effect and how to request compensation to the defaulter. In the fourth part, based on the third part, the author gives some advice on how to amend our Marriage Law.