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On The Nature And The Effectiveness Of The Divorce Agreement Before The Litigation

Posted on:2010-07-13Degree:MasterType:Thesis
Country:ChinaCandidate:J W SunFull Text:PDF
GTID:2166360272497203Subject:Law
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The divorce agreement before the litigation is the agreement about the dissolution of the marriage and the arrangement for the consequences of the divorce between the couples. The divorce agreement before the litigation is the same as the divorce agreement in the course of transacting the registered divorce. We call it divorce agreement before the litigation in order to distinguish it from the divorce agreement during the litigation. Because of the double tracks system of divorce by agreement in our country, divorce by agreement can be achieved through registration proceedings or conciliation proceedings. The divorce agreement includes the divorce agreement before the litigation and the divorce agreement during the litigation.In general the parties will transact divorce registration after coming to the divorce agreement. However, such cases that one party does not register with the other party often happen in practice. In order to divorce the other party has to resort to the court to request a court decision for divorce and fulfillment of the divorce agreement before the litigation. Therefore the following questions arise: 1.Whether the divorce agreement before the litigation which is in accordance with the requirements of transacting the registered divorce has been instituted or not.2.Whether or not the divorce agreement before the litigation is valid? Because of no explicit provision in the law the judges and scholars says their armed. So that such things that the same case has different verdicts often happen in practice. The court's image of fairness and justice has been damaged. In order to promote the problem resolved as soon as possible, this article discusses the legal nature and the effectiveness of the divorce agreement before the litigation.This article is divided into three chapters:ChapterⅠis the meaning and the legal nature of the divorce agreement before the litigation.This chapter is divided into two parts. The first part which is divided into two small parts is the meaning of the divorce agreement before the litigation. The first small part is the concept of the divorce agreement before the litigation. Based on the concept that government protects the stability of marriage, I think the divorce agreement before the litigation can only be the divorce agreement in the process of the divorce by agreement between the husband and wife. In addition, the agreement of the consequences of divorce without the purpose of divorce in the marital relationship is not the divorce agreement before the litigation. The second small part is the contents and features of the divorce agreement before the litigation. In our country there is only a few relevant legal norms that provide several laws on the contents of the agreement before the divorce. These laws are mainly in the《Regulations on Marriage Registration》,but they are not comprehensive. I expatiate on the contents and features of the divorce agreement before the litigation in accordance with summaries of the scholars. The context of the divorce agreement before the litigation has the following main aspects: the legal intention declaration on consensual divorce,child support agreement,agreement on properties division and debt-sharing. The features of the divorce agreement before the litigation has the following main aspects: contents intact,the legality of subject of private right,mode specificity,hierarchy of the context. The second part is the legal nature of the divorce agreement before the litigation. The legal nature of the divorce agreement before the litigation has great impact on the definition of the effectiveness of the divorce agreement before the litigation. I devoted a large portion to analyze the legal nature and put forward my own ideas. I think that the analysis of the legal nature of the divorce agreement before the litigation must be set up at the basis of the relevant theories: marriage law belongs to the civil law, the autonomy of private law, civil juristic act, contract theory.I think the divorce agreement before the litigation is mixed contract which includes the status relationship and property relation. My viewpoint is not exactly the same to the point of view that the divorce agreement before the litigation is mixed contract. In my opinion child-care expense belongs to property relation through further analysis, I think that legal intention declaration on consensual divorce is the principal contract and the arrangement for the consequences of the divorce is the accessory contract.ChapterⅡis the legislative status about the effectiveness of the divorce agreement before the litigation and the analysis of several opinions.This chapter is divided into two parts. The first part is the legislative status of the divorce agreement before the litigation. I mainly expatiate on the legislative status of our country. In judicial practice, In order to compensate for the lack of marriage legislation the supreme people's court issued related judicial interpretations. However, these judicial interpretations which are only"Stop-gap measures"not only fail to solve the problem but also lead to other new problems.《Judicial Interpretations of the Supreme People's Court on the Application of Marriage Law of the PRC (Ⅱ)》of Article VIII did not elaborate. Eventually the interpretations are used to proof their own opinion as arguments. The second part is the analysis of several opinions. I mainly selected some typical opinions. They are: the opinion that the divorce agreement before the litigation is invalid, the opinion that the divorce agreement before the litigation is the agreement with entry-into-force conditions; the opinion that the agreement should be referenced appropriately; the opinion that part of the mixed contract is valid; In my view the opinion that the agreement should be referenced appropriately is the most unreasonable. This opinion is not only inconsistent with the autonomy of private law, but also expands court's discretionary power virtually. The opinion that the divorce agreement before the litigation is invalid is also unreasonable. It does not recognize the agreement which the parties made in accordance with legal forms is legal intention declaration. Anyone who holds the opinion either thinks that the divorce agreement before the litigation is only the intention, or ignores the objective existence of the agreement. They conclude that the agreement is invalid at the basis of this opinion. The opinion that the divorce agreement before the litigation is the agreement with entry-into-force conditions has certain rationality. They put divorce as conditions of the valid civil juristic act. This opinion has many places worthy of endorsement. It not only respects the party autonomy but also it is in accordance with the characteristics of divorce, but may not be able to avoid the improper conditions of success contributed to the emergence of behavior.Chapter III is the theoretical basis, the type and legislative proposals of the divorce agreement the divorce agreement before the litigation.This chapter is divided into three parts. The first part is theoretical basis of the divorce agreement before the litigation. In accordance with the overall outlook of this article, the divorce agreement before the litigation is not only civil juristic act but also contract in the broadest sense of the term. So first of all the the legal validity of the divorce agreement before the litigation depends on whether it is consistent with the essential condition of the civil juristic act or not. Secondly, the agreement does not violate the mandatory provisions of the Marriage Law, such as the principle that no person could violate the legitimate rights and interests of minors. At the application of the law, the relevant provisions of contract law in our country can not be directly applicable to the divorce agreement before the litigation. Since china's contract law clearly defined that contract law only applies to pure property relations. The divorce agreement before the litigation is mixed contract which couldn't be applied by the contract law because of status relationship which the agreement includes. But the divorce agreement should refer to the relevant norms of contract law according to the theories of civil juristic act and principles of contract Law. The second part is the type of the divorce agreement before the litigation. I think in the first chapter consensual divorce and the arrangement for the consequences of the divorce have the relationship which is same to the relation between principal contract and accessory contract. If the principal contract is invalid, the accessory contract is bound to. I divide the divorce agreement before the litigation into two types: one type is that both parties agree to divorce and another is that one party does not consent to the divorce. In the first type, if the arrangement for the consequences of the divorce is in line with essential condition of the civil juristic act and don't violate the mandatory provisions of the Marriage Law ,the agreement is valid. In the second type, according to the standards of deep marital rift the court must review whether or not both parties should divorce and the legal intention declaration on consensual divorce is true in the divorce agreement before the litigation. If judges consider the legal intention declaration on consensual divorce is true and the arrangement for the consequences of the divorce is valid after review, the divorce agreement before the litigation is valid. If judges do not grant a divorce, it shows the mutual affection between husband and wife still exists or the legal intention declaration on consensual isn't true. If the principal contract which includes the Legal Intention Declaration on consensual is invalid, the accessory contract is invalid too. As a whole the divorce agreement before the litigation is invalid. The third part is the legislative proposal. First of all, I suggest that parties who come to the divorce agreement before the litigation should be limited to the husband and wife without minor children, in accordance with the principle that no person could violate the legitimate rights and interests of minors. In this way, such provision not only respects the party autonomy but also does not violate the legitimate rights and interests of minor children. Secondly, I suggest that the law should clearly stipulate essential terms. The agreement that do not have essential terms is not the divorce agreement before the litigation. This is not only in line with the constituent elements of the legal intention declaration, but also serves to enhance the seriousness of divorce. It not only ensures Freedom of divorce but also prevents divorcing lightly. Once more I suggest we should set up the three-month duration for the divorce agreement before the litigation. From the time when parties come to the divorce agreement before the litigation to the end of the period, if one party sued for divorce, the court may review the agreement as the truth. In order to protect the stability of marriage and family and prevent divorcing lightly, the agreement should be deemed non-existent over this period.
Keywords/Search Tags:The Divorce Agreement before the Litigation, Civil Contract, The Effectiveness, Legislative Proposal
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