The Study On The Force Of "Loyalty Agreement" Within Husband And Wife

The Loyalty Agreement is the written agreement that requires loyalty to each other within a husband and a wife before or during the marriage, otherwise the side who breaks the promise has to undertake the infringement responsibility. The first judicial practice of "loyalty agreement" case within a husband and a wife, leads to the widespread controversy in the legal profession. lll-defined nature of "loyalty agreement" leads to confusion of the judicial practice. And then, this paper gives the questions of how to identify the force of law of "loyalty agreement", the necessities of legal regulation, and from the respect of administration of justice and legislation how to regulate. At the beginning, this paper, from the meaning of the concept of marriage contract, tells that the marriage is a special contract, concluding personal property; and then focusing on the legal relationship of the "loyalty agreement"itself,discussing the legal property of the"loyalty agreement", and to the contract theory, autonomy can be applicable in the relationship between a husband and a wife. The "loyalty agreement" includes personal relationship of non-payment and property relation of the payment of property with conditions coming, from the new point of view of general civil legal action, this paper identifies the legal property of "loyalty agreement". Secondly, this paper tells the necessities of appropriate legal regulation of "loyalty agreement", concluding adapting the needs of social reality, and the requirements of judicial justice, etc. At last, from the point of civil application, this paper tells how to apply in justice, for example, identifying legal nature, and allocating burden of proof, and then, from the legislative level, this paper tells to promote the reform of marriage law actively, for example, putting the duty of loyalty into the category of legal obligation, introducing the notary system, and combining the system of divorce damages with "loyalty agreement", to make up the short of existing laws.