Explore The Nature And Effect Of "Marital" Assurance Compensation Agreement

The diversification of productive forms has brought the diversification of marriageconcepts. Based on the spirit of autonomy of private law, the "marital ’assurance’compensation agreements" are signed by quite a few couples in order to keep their marriagessafe, but because the nature and the effect of "marital ’assurance’ compensation agreement" isnot specified in "Marriage Law of PRC", the court’s decisions lack of operability and unity.In practice, the embarrassing situation of "similar situations with different sentences" makesthat the "marital ’assurance’ compensation agreement" has drawn extensive attention anddiscussion by judicial and academic circles. Taking it as the starting point, the author exploresthe nature and effect of "marital ’assurance’ compensation agreement" in this article.The total article can be separated into four parts besides its introduction:The first part is the case of this article. In the perspective of Xiemou vs Huang divorcedispute, the author puts forward the focus of the dispute: the nature and effect of "marital’assurance’ compensation agreement".The second part is the theoretical analysis of "marital ’assurance’ compensationagreement". On the one hand, starting from the elements of the contract and the contractualnature of marriage, the author points out that "marital ’assurance’ compensation agreement"conforms with the basic characteristics of contract and the contractual nature of marriage, that"marital ’assurance’ compensation agreement" is the collateral contract based on marriagespouse rights and that the marriage is the main contract. On the other hand, the authoranalyzes the effective constituents of "marital ’assurance’ compensation agreement" whichincludes the subject who is eligible, the intention expressed which is genuine and the contentwhich is not in violation of the law, public order and good customs.The third part is the applicable analysis of "marital ’assurance’ compensation agreement".First of all,"marital ’assurance’ compensation agreement" should come into force withoutdivorce as a precondition. Secondly, when "marital ’assurance’ compensation agreement" andthe divorce damage compensation show concurrence, the author thinks the party without faultshould be given the right to choose one of contact breach or tort to bring to the court. Finally,about the "marital ’assurance’ compensation agreement" coordinated measures, the authorthinks that: because not a few couples prefer statutory property system to agreed propertysystem, the matrimonial special property system may be an effective solution to solve the embarrassing problem of "pocketing coins from the left pocket to the right one ".The fourth part is the conclusion of this study. In combination with the theoreticalanalysis and applicable analysis of "marital ’assurance’ compensation agreement", the authorcarries on the evaluation on the court’s judgment by pointing out its legitimacy and rationalityand makes the summary about the case which this article quotes.