Study On The Judicial Treatment Of The Innominate Identity Agreement

Innominate Identity Agreement is the agreement that the party of the marriage and family relationship signs to restrain the identity of each other, and the law is not stipulated. On whether the kind of agreement has the force of law, and what is the effect, it causes extensive discussion after the first case of couple loyalty agreement compensation in Shanghai Minhang District in2002. The paper argues:innominate identity agreement is not a contract, cannot be given to the effective validity of contract if not against the law, public order and morals, bur rather as a natural obligation to guide judicial practice by the theory of natural obligations. Assigned to the effectiveness of natural obligations, innominate identity agreement is in line with the ethical and moral concepts of the public family area, to insist on the concept of judicial humility of the family field, but also to determine the ownership of property and mediate dispute.From the structure of writing, this paper is divided into an introduction, body and conclusion. The body part is divided into three chapters, generally as follows.The first chapter lists some cases related to loyalty agreement, no family violence protocol, birth agreement, sums up the court judgment for the different cases, leads to the judicial treatment to Innominate identity agreement disputes that the paper will disputes.The second chapter is the focus of the article, mainly about the academic study of the innominate identity agreement, is divided into three parts. The first part, based on the statutory right to an identity and the principle of freedom of contract, fully explore the characteristics of the identity and property behaviors, the difference between named and unnamed identity agreement, retorts the view that innominate identity agreement should be characterized as contract in academics. The second part, summarize the different characteristics and the judicial treatment of contract law and family law, explore the causes of judicial humility in family field, further demonstrate that it cannot solute innominate identity agreement disputes by the contract legislation and judicial principles. The third part, on the basis of exploring the origin of the concept of natural obligations and the different effect with the statutory debt, demonstrates the rationality of the treatment of innominate identity agreement disputes with the concept of natural obligation.The third chapter regresses judicial practice, on the basis of distinguishing relevant concepts of the general principles of the civil law, proposes the basis of innominate identity agreement validity judgment and the strategy of judicial treatment, in order to put forward suggestions on the judicial practice, reduce the "different codefendant " phenomenon, uphold the law justice by conceiving basic referee method.