| The agency right of daily family affairs is one of the most important rights between the couples. The basic point of it is to found a suitable system legally in China to protect the life and property between the couples and benefits of kind, unpremeditated third person who has settled fortune relationships with the couples. It is universally acknowledged that the agency right of daily family affairs is a necessity between the couples, for they have so many daily affairs to deal with that they can not dispose them all in person together. Most countries in the world have constituted the agency right of daily family in their marital laws. As an identity right, it is stemmed from the progress of civilization, which is also a symbol of equality between the couples. It is a pity that our marital laws did not stipulate the agency right of daily family affairs clearly, in which it is only described as the equal right of dealing with common properties between the couples in stead. With the development of our social marketing economy, civil affairs are much more complex. It is a quite normal behavior for the couples to transact their family properties, in which their dissension with the third person always arose. It is also difficult for judges to get proper laws to suit these cases, which led to the dissatisfaction of the parties. All these are not beneficial for the protection of trading securities, which is an important theory in civil and commercial laws. The protection of trading securities are well reflected in civil and commercial laws, such as the protection of the kind third person, the blaze of properties, the modally legal agency, etc. The recognition of transaction securities in law should be emphasized and applied to specific laws. It embodies the change of civil and commercial law from theories to practice, the value of laws from powers to social rights, which is also the request of legal economics.The paper is written from the point of view of protecting transaction securities, in which I offered some suggestions to improve our agency right of daily family affairs. I am looking forward to making some contributions to the improvement of our laws and the legal society as well.The thesis can be divided into three parts.Firstly, I described the signification of protecting transaction securities in the agency right of daily family affairs and its necessities. Security in transaction is the important concept in civil laws, it tends to the dynamic security contrast to the static security, in the other word, means to protect the party's actions of gaining new interest in the trade, not making it invalid, that is so called security. In the thesis, it mainly means the security in the transaction with the couples and concerning the matrimonial regime. Security in transaction has its values as an important lawful concept. We can find many rules to protect the security in the transaction, such as the system of protecting the third party acting in good faith, the system of the property, publication, the ostensible agency system etc. Security in transaction in the civil law has looked highly upon, which represents the change of the civil law from"static right to dynamic right", the change of the value from protecting the private right to the social right, the request of the development of the economic. We should pay attention to it and carry out it in the marital laws. In modern society, the civil law, which is used to adjust civil affairs is regarded as one of the basic and important law, should pay more attention to the transaction securities in daily family affairs. Therefore, to establish the agency right of daily family affairs between the couples is a significant step in protecting the security of transaction and the benefits of the third party.Secondly, I introduced the weakness and its reason of protecting transaction securities in our daily family affairs. One weakness is that the agency right of daily family affairs which is one of the most important items between the couples is not clearly stipulated in our marital laws, but is exactly written in the civil laws in most countries. It is only described as the equal right of dealing with common properties between the couples in Item 2 of Article 17 in our Marital Law. The other shortcoming is that the explanation of Article 17 related with the application of the Marital Law of the People`s Republic of China made by the Supreme People`s Court of China on the 25th of December in 2001 shows some progress in legislation, and is beneficial to the protection of the third party in transactions. Another defect is that the explanation is too general to be carried out in practice, which is not good for the protection of transaction securities. Because there is no explicit definitions of the scope of daily family affairs, the rules of exertion, the result of abusing right of agency and the elimination of the rights, it is quite hard to protect the third party in transactions if one of the couple abused their agent rights in daily lives. We can protect the benefits either of the couple or the third party for the uncertainty of the judge by law. I analyzed the reason of these weakness based on the development of our marital legislation and our economy and so on.Thirdly, I wrote my concept on establishing the agency right of daily family affairs between the couples to protect the transaction securities in legislation. At first, the body of the agency right of daily family affairs between the couples should be in the rights and obligations, and be stipulated as well. The right originated from the"house-affair appointment"in the Constitution of Old Rome and is carried on by the early capitalistic theory. The main part of the right developed from the early period during which the wife was entrusted by the husband to deal with the right to the period when the couple both can deal with it and the thesis also stated the reason why so many changes are caused is that the development of economy and the arising of the movement for women's right. It is also analyzed in the article that the agency right of daily family affairs between the cohabiters and virtual marriage. Next, there is no explicit stipulation about the scope of daily family work in our legislation. At present, existing two major points: one is the narrow sense said that, thinking that the scope of daily family work power of attorney restricted in the basic necessities of life. The other is general said, thinking that the scope may expand to the real estate,the payment of divorcement and court cost. The third part directly carried on the limit to the daily house-affair arrange, according to our country, the situation that does not belong to the daily house-affair including:1. Handing big amount of community property,such as real estate and stock transaction. 2. The affairs only relating to personal live, such as being personal character civil legal act and contract behavior. Supporting or adopting children.3. The behavior engaged in production management. The conditions beyond the agency right of daily family affairs between the couples should be excluded unambiguously. Then, we should ordain the rules of the agency right of daily family affairs between the couples, the aftermath of abusing the agency right of daily family affairs and its redressing measures. Finally, we should stipulate about the forfeit of the agency right of daily family affairs.To sum up, it is quite necessary for us to construct the agency right of daily family affairs between the couples to adapt to the social development, which is more important in building socialist society harmoniously. The legislation should give specific and rigorous stipulation to the daily family work power of attorney main body, exercising time, the authority in the field as well as exceeds authority time aspects to protect the third person's interests. It can be interpreted that, the family that constitutes by husbands and wives is the cell of the society, only by displaying the family's function fully and activating the cell vigorously can we achieve the final goal of constructing the harmonious society of socialism. |
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