On The Legal Binding Force Of The Couple's Loyal Contract From The Marital Contractual Essence

After China's first divorce case in 2002 was trialed under in which the party who ran counter to such contract was held liable to by making compensation about whether loyal contract has legal binding force or not a heated discussion was arisen in theory.Most scholars opposing the loyal contractual binding force attempts to deny in a ethic prospect;while the pro-loyal-contractual-binding-force scholars support their ideas from aspect of civil contract,persisting that loyal contract belongs to the self-domination of civil domains.Such debates attribute to many reasons,but the most important drawback is that present law is lag far behind the changing society.In marriage law of PRC,there is only a abstract provision in general principles,not including even a concrete consequence where such contract is violated,and without fornication-forbidden as well.It is because such a absence that leads to the uncertainty of loyal contract.At present,the research on loyalty contractual binding force is still less conducted,most relevant papers just concern about comments,hence the motivation of that the author chooses conduct a examination of such a issue.This article has used the research technique which the case and the theory unify, begin with cases firstly which appears from the society obtains,to show that the similar cases have the different decision in the different court,then the author again theoretically discusses the loyal contract whether should the effective question,return finally to the case evaluation,formed the head and tail to echo.This article is divided into three parts which is the introduction,the main text and the conclusion approximately 40,000 characters.The main text altogether includes five parts.Chapter one is question statement.The author obtains from the cases and introduces different decision emphatically regarding the similar case's,thus draws out the question:whether the loyal contract has legal binding force.Then introduction about two different theory arguments of the academic.Chapter two is the evaluation definitely of two kind of theorys which are pro-side and con-side.The author pointes out that two theories have the respective flaw through the evaluation,namely they are not able to explain clearly loyal contract's legal binding force question.This indicated that we must elaborate its legal binding force regarding the loyal contract from a deeper level.Chapter three analyzes the contractual essence of the marriage.The modern marriage conforms the contract request about the agreement and the exchange,and meet the most core philosophy of contract:equality,freedom and Justice.Only the marital essence is the contract,can discusses the loyal contract to be whether effective in following discussion in the husbands and wives relate appears.Chapter four discusses the legal binding force of the loyal contract.Firstly,the author elaboration loyal contract effective reasons positively from theory and the law are consistent with the effective nature of the modern marriage as well as has the support of the law in loyal contract about the property agreement.Chapter five is different opinions of the practice and narration.The author mainly narrates the decision of Minhang District court of Shanghai,as well as analysis the view of the Shanghai Municipal Higher People's Court,pointing out the meaning that to admit the validity of the loyal contract to marriage.