A Study On The The Contractual Mrital Property System In China

Living together is the main purpose of marriage, so there must be kind of property connect and common benefits. Meanwhile, as an independent social individual, no matter if you married or not, there are private properties which need to be protected. Therefore marital property relationship should be the indispensably essential part of conjugal relations. The matrimonial regime of China consists of legal property system and contractual property system, besides the former one is the main point and another one is its supplement. The contractual marital property system is that the couple (or who are engaged) makes a contract to decide who can get or how to manage, use the property before or during the marriage and how to divide these properties while divorcing. It does not need to use the legal property system. The law of marriage in China which has been amended makes new rules to the contractual marital property system. But as the development of our economy no matter individual or family’s properties are increasing on both variety and number. And husband or wife or the family as equal civil subject makes debts more and more often in the economics field. So there comes out some problem of the contractual marital property system during legal practice. The writer comes up with some shortages and some thoughts of how to perfect the system by using those problems and some former experiences as reference. This paper includes three parts:Chapter one is the overview of the contractual marital property system. This chapter consists of the concept, significance, requirements of the system and the relationship between contracting and giving. We always feel confused of the relationship between contracting and giving. Marriage Law Judicial Interpretation makes an explicit provision of the giving between couples. The writer will use cases to analyze their differences and commons.Chapter two is the content of this system itself and the comments of it. This chapter concludes the writer’s discussion of the variety, form, efficacy and extent, time of the system. The law of marriage in China prescribes three types to the system which the party can choose any one they like. While it could cause a problem during legal practice that because of the parties choosing more than one kind, the contract becomes invalid. So the writer thinks the types of the system should be amended by legislation. The writer uses cases to discuss the form and efficacy of the system. Also the writer describes the limits of the system in our laws and point out that out rules are too broad. As for the time of this system, there is no rule for it. The writer indicates that we should make the time clear by using foreign legislation as reference. We can see the necessity of amending the system through this chapter.Chapter three is some suggests of amending our contractual property system. Although we have already got rules for the system, there are still some shortcomings. So for the better protection of the third party in good faith and the lawful rights and interests of one party in marriage the writer comes up with some suggests:we should amend the type, form and efficacy of this system; we should make the extent and time of this system clear.