On The Nature And The Effect Of The Divorce Agreement In Our Country’s Negotiated Divorce

Under the judicial practice of dual system in negotiated divorce, divorceagreement is considered as an agreement of both husband and wife’s will aboutdivorce and divorce result, emphasizing both parties’ voluntariness, equality andautonomy of will, the reflection of implementing the principle that MarriageLaw should guarantee divorce freedom. From the angle of property disputeappeal of Zhan Shiqun and Wang Bangming after their divorce, this thesissummarized the focus problems of both parties in this case, analyzed the lawtheory involved in this case and made comments and further understandingabout the final results from the nature of divorce agreement, invalidation,revocation and potency of the third party with the combination of Chinesemarriage and family legislations. This thesis is divided into five parts instructure.Part Ⅰ introduced the cause of action of this case for analysis. This thesisquoted the retrial executed civil judgment of the Fifth Intermediate People’sCourt of Chongqing Yuzhong Municipality. Part Ⅱ introduced the details of the case for research, including the basicsituation and judicial judgment.Part Ⅲ concluded the focus problems of this case, and summarized the lawtheory related to these focus problems as the refined generalization of part IV.Part Ⅳ discussed the disputes in this case. This part mainly researchedthree questions. First, the discussion about the nature of divorce agreement. Thewriter investigated the theories about divorce agreement both in literature andjudicial practice, which are the single bond theory related to identity, the mixedcontract contained property relationships and personal relationships and theattached effective conditional contract theory. The author promoted her ownidea that divorce agreement is a kind of behavior which embodies formedidentity behavior and affixed identity behavior in relative law by its nature.Second, the invalidation and revocation of divorce agreement. As a margin ofChinese family and marriage law, the writer divided this situation into threegroups according to the relevant theories of Chinese Civil Law and ContractLaw combined with the representative cases in practice. They’re completely invalid divorce agreement, partially invalid divorce agreement, and revocabledivorce agreement. Among them, completely invalid divorce agreement can bedivided into two types: subject qualification loss and violation of mandatoryprovision of law and administration law; partially invalid divorce agreement canalso be divided into two types: invalidation on division of property agreementand invalidation on children fostering agreement; revocable divorce agreementonly includes fraud and duress, exclude of vital misunderstanding, obviousunfairness and taking advantage of the other party’s precarious situation. In theend, the potency of divorce agreement towards the third party. The authoranalyzed the situation that when parents made agreements to deliver their jointproperty to their children, whether the third party can be given the right of claimor not through the nature of this divorce agreement in real cases. The writerconcluded three points of view. The divorce agreement can be considered as thecontract of gift (it’s up to the real situation to decide the third party’s right ofclaim), the third party’s benefit contract (the third party has the right of claim), or delivery through the appointed party (the third party doesn’t have the right ofclaim payment.Part V is about research results. The writer clearly stated her suggestionsand viewpoints about the nature of this case quoted in this thesis and the finaljudgment through the detailed demonstration in part IV. The author alsoexplained her reasons and reference materials from law theories and regulations,and contributed related legislation advice to expect to provide assistance tosimilar cases.