Studies On Husband And Wife's Agreement Property System

With the development of social economy, property situation in marriage and family scopes has taken place great changes in our country. The property of husband and wife become more and more not only in amount, but also more complex in its sources. The property husband and wife acquire also becomes plural in usage. This phenomenon requires to employ dynamic management, proceeds, publishing right to make their property increase continuously. However, it is not adequate for previous husband and wife's legal property system to reflect and adjust their relationship between right and obligation in property. The establishing and improving of husband and wife's agreement property system in the amended《Marriage Law》adapts to current needs in trending complexity of family property and trending pluralism of individual needs. It makes marriage party has greater flexibility to deal with each party's property, but it still has some deficiency. The present thesis will discus from three aspects of husband and wife's agreement property system in our country: the necessity of implementation, restrained factors and its building. It also will put forward improving proposals for it.The first part is necessity of implementing husband and wife's agreement property system in our country, which includes three parts. The first is the deficiency of husband and wife's agreement property system. First, the legal property system limits to a certain extent obtains a property side right exertion, but husband and wife's agreement property system actually to be able to manifest party's wish, enables its to exercise fully belongs to own real right. Second, the second marriage phenomenon are getting more and more, only legally decides the property system to their property adjustment is also insufficient, permits when their second marriage with the agreement method to both sides, after marriage property carried on the agreement before the wedding, is advantageous in the reduced dispute's occurrence. Third, along with marriage with a foreigner's increase, allow husband and wife to carry on the agreement to the property, may also consider this aspect each kind of complex situation. Fourth, along with our country socialist market economic system's establishment, specially the individual economy, private sector's development, involve to many related property rights, the creditor's rights aspect legal matter, proposed to husband and wife's property system is different in the legal rule reality request. The second is legislation development of it, which introduces abroad and domestic legislation situation from angle of historical development, especially husband and wife's agreement property system in our country. The third is establishment significance of it. Firstly, it adapts to the need of present economy development in our country and accords with legislation spirit of constitution. It also respects individual party's property right. Secondly, it represents the"idea self-government"principle of civil law. Thirdly, it guarantees citizen's legal property proceeds and maintains the third party's interest and dealing safety. Fourthly, it accords with current needs in trending complexity of family property and trending pluralism of individual needs in our country.The second part is to introduce restrained factors of husband and wife's agreement property system in our country. They are restrained by many factors: development level of social production force, traditional view on marriage, feudal superstitious thought and deficiency of legislation.The third part is to establish husband and wife's agreement property system in our country. It includes five parts. The first is to regulate the opened type of husband and wife's agreement property system in our country. Because it can not meet the party's plural need for property agreement. The types of husband and wife's agreement property system in our country should not be confined to three ones: general common system, limited common system and respective property system. For example, husband and wife want to get their own possession according to the agreement property of pre marriage and after marriage. But the increased property belong to them together. This property system shares characteristics of both respective property system and common property system can not be permitted according to present《Marriage Law》in our country. But it may be the best option to make greatest profits for the parties. The second is to standardize the husband and wife's property agreement and open the process of their registering. Whether application register must be opened or not has been regulated clearly in the new《Marriage Law》. It will bring some negative effects in practice. First, to property agreement content explanation question; Second, is unable to prevent husband and wife to evade circumvention law and so on debt using the property agreement behaviors; Third, is unable to protect the property right which well the husband or a wife side has. The public announcement is《Property Rights Law》on concept, it is behaviors and so on property hypothesis, shift publicizes, enables the third person to know, thus causes the third person of benefit not to receive the harm, the transaction security and the order obtain the maintenance. The concrete manners and methods of being opened can borrow from foreign operation, which is totally administrated by marriage register department. In order to achieve publicity credibility effect, the husband and wife property contract material should be open to the society, supplies the consult, should have the difference regarding the inquiry scope. The third is to clarify the effective validity documents in husband and wife's agreement property. Those validity documents include essence document, format document, agreement validity force and the validity time of agreement. Among them, the main body of agreement property system must require spouse's special identification and the disposition capability to reach agreement. That disposition must be parties'personal action instead of that of agent. The intention of both parties should express verity. The content of contract can't be beyond the range of property right two parties enjoy. It must comply with public morality of society and clarify the property right and obligation of two parties. In format document, husband and wife's property agreement must be in written form and be registered in marriage register department. Agreement validity can be divided into internal and external validity. Once the husband and wife's property agreement, substance right validity of property agreement between the two parties and inheritors becomes effective. Both of two marriage parties accept that they are confined to agreement. External force means that whether the both parties'property agreement can be against the third party or not. If it can, legal validity towards external will take effective and husband and wife's property agreement can't be against the third party randomly. The law of our country should establish the system of opening to the public when they register in husband and wife's property agreement. It also regulates that husband and wife's property contract has external force if they register according to law. If the third party knows the content, he also can enjoy the law validity even though he does not register. The validity time of agreement property can be divided into ascription agreement and segregation agreement. The fourth is to regulate the procedures of modification and revoke in husband and wife's agreement property system. The《Marriage Law》of our country evades this problem. Taking foreign legislation for reference, it supposes that property agreement between husband and wife is the quality of contract, which adapts to the general rules of relevant contracts. The fifth is to add regulation for agreement without recalling force and the regulation of extraordinary property. Taking foreign legislation for reference, it supposes that the modification of property contracts has no recalling force to the third party. Husband or wife should undertake the appropriate repaid responsibility according to their previous common or personal debts. Extraordinary property system is to go through litigating applicable and legal husband and wife's property system under special circumstances. It usually can change husband and wife's common property system into individual property system. The presen《tMarriage Law》in our country has no clear regulation on division of husband and wife's property during marriage extended periods. When one party requires dividing the common property based on reasonable reasons and is rejected, law usually can not protect him or her. Taking foreign legislation for reference, I suppose that our country should regulate extraordinary property system and adopt exemplified legislation cases.In brief, husband and wife's agreement property system is complex and the very important property system, it involves to the family and society's aspects, also includes between husband and wife, the good intentions third person of benefit, also includes legal, Private agencies' jurisdiction and the responsibility, is one legal matter which is worth the entire society paying attention. We only then further consummate husband and wife's agreement property system, can promote conjugal family system's consolidated. Therefore, except develops the social productive forces vigorously, raises outside the people living standard, but should also finish the following work: First, the legislature to pay more attention to the system of husband and wife's agreement property system, the jurists must even more pay attention and penetrate studies; Next, should strengthen the legal system propaganda, enhances the entire social the legal awareness; Once more, strengthens the idea to transform, utilization law management family asset. In brief, we《Marriage law》and other each legal regime will certainly to consummate gradually, is more scientific, promotion social economy development, stable social order.