| The spirit of contract was regarded as the mainstream of western civilizationspirit, and the spirit of freedom and equality affected the whole social value appeals.Affected by the feudal traditional thought during several thousand years, the marriageand family relations of China less embodies the spirit of contract. Marriage law isclosely related to everyone’s life, and the marriage law of China has been carryingethical, customs, the will of the state and so on. Importing the spirit of contract bringsan opportunity to the transformation of our marriage law.The structure of this paper is divided into three parts:The first part:"contract spirit" as a foundation of modern law. Firstly, it will beput forward that the spirit of contrast is the foundation of modern law which based onthe concept of contract and exposition of the civil law contract spirit, and then, thespirit of the contract of freedom, equality and citizen consciousness shaped the theoryof law supreme, everyone is equal before the law and standard of right of generalpublics.The second part: the fit of the nature of marriage and the spirit of contract Firstof all, reviewed the various theory about the nature of marriage and legal relation,including contract theory, system theory, ethical theory, identity relation theory,through the analysis, the author thinks that the understanding the nature of the legalrelation of marriage should be based on the combination of contract theory andidentity relationship theory. Marriage accords with contract spirit in form andsubstance, but cannot ignore the identity of the marriage. Finally, the paper discussesthe meaning of understanding of marriage in the view of contract: firstly, it is good tothe implementatiom of liberty, equality and justice of modern marriage law; secondly,it helps to achieve the profit maximization of litigant in marriage law.thirdly, itmakes more operational when the law adjusts marriage relation; fourthly, it makes therole in the marriage law more clear.The third part: the marriage contract concept leads the modern transformation ofChinese marriage law. This is the center part of the paper. Firstly, the paper talks about the reflection and function of the spirit of contract in the transformation ofChinese marriage law. In1950, the first socialist marriage law established the spirit ofmarriage freedom, equality between men and women, and monogamy; in1980, basedon the former principles, marriage law allows couples accord with the promissoryproperty system; in2001, after comprehensive revised, the marriage law brightlymanifested the concept of the independence, equality, freedom and justice, such asadding the revocable system, refining marital property, respecting the freedom oflitigants, adding damage compensation system and the housework compensationsystem in divorce, anti-violence contents, and the marriage law pays more attentionto the independent personality, which ensures the basic principle of equality betweenmen and women in marriage law.“2011, marriage law judicial interpretation (3)>”carried out the spirit of free, equal and democratic more deeply.Finally, the article discusses how to use "marriage contract view" to guide ourmarriage law construction, mainly from four aspects: firstly, emphasizing theprotection of the individual rights with the guidance of theoretical; secondly, limitingindividual rights by stating intervention necessary; thirdly, paying more attention tothe effect of moral regulation when adjusting the marriage and family relations;fourthly, constructing the marriage law in the pragmatic perspective. |
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