On The Effect Of Couple 's "Loyalty Agreement"

Nowadays, in order to adhere to the walls of love and maintain a normal marriage relationship, more and more couples choose to use a paper agreement to protect their marriage, then a contract between husband and wife which is called "marital loyalty agreement" become popular in the streets. However, the law in our country does not make any provision, which led to the difficulties and confusion in judicial application. In2002, Shanghai Minhang District People’s Court accepted and heard the first "marital loyalty agreement" case and the court proceedings in support of the wife’s request to get the compensation. Besides this judgment also initiate the discussion of "marital loyalty agreement". There is a big wave in China’s legal theory field and the pros and cons voice can be heard everywhere. There are no uniform opinion about the nature and validity of the "marital loyalty agreement", which may inference the unity and stability of the rule of law. In view of this, in the basis of defining the "marital loyalty agreement" and starting with the current situation of "marital loyalty agreement", this dissertation selective analyzes the "loyalty agreement "should be a valid legal instrument from three aspects, which are the marital relations, the duty of loyalty, the nature of the contract. Then it concludes with some practice specific recommendations when dealing with such cases in order to make a contribution to the judgment of judicial authorities and the future legislation.Besides the foreword and conclusion, the main body of this dissertation is divided into four Parts.Part Ⅰ—an Overview of "Marital Loyalty Agreement". First part clarifies the definition of "loyalty agreement", as in the broad sense of "loyalty agreement" concept contains too much, and in many cases they violate the law’s basic provisions and public order and good morals, so it is not discussed within the scope of this article. This dissertation only discusses the narrow understanding of "loyalty agreement". Then the second part introduces the causes and functions of "Marital Loyalty Agreement". The last past focuses on the origin and the meanings of study on the Validity of "Loyalty Agreement.Part Ⅱ—the Current Situation of the Validity of "Loyalty Agreement". First part introduces the first "marital loyalty agreement" cases in Shanghai and also expound the ratio decidendi. Second part is focus on the legislation and deficiency in this area. The last part combs the regulations of the duty of loyalty and the "marital loyalty agreement" in other countries and regions.Part Ⅲ—the Analysis on the Validity of "Loyalty Agreement". Starting with the reasons of pros and cons, the author put forward her own point of view. Then the author demonstrates the institutional, legal and theoretical bases of "marital loyalty agreement" in detail from three aspects, which conclude the marital relations, the duty of loyalty, and the nature of the contract. Thus obtains that we should admit the validity of the "marital loyalty agreement".Part Ⅳ—Specific Proposals When Dealing with "Marital Loyalty Agreement" Cases in Judicial Practice. In this part, the author put forward some suggestions, including the effective standard of "marital loyalty agreement","marital loyalty agreement" can’t be sued without the divorce request, the valid "marital loyalty agreement" should be notarized and the meaning of "loyalty" and "liquidated damages" requires a certain amount of restrictions.