Study On Agent Right System Of Family Affairs

Agent right system of family affairs refers to something that a husband or wife has the right of being the agent of the other to exercise his or her rights, in the situation when he or she has some certain legal acts on daily household matters with a third party, and the husband and wife will bear the joint liability of legal consequence resulted by it. The mentioned system originates from ancient Rome. In order to solve the problem that the male patriarch cannot do everything in person, the ancient Roman justice stipulated in legal form that in some particular circumstances, the male patriarch was able to authorize his “filiusfamilias(youngermale immediate family member)”to make decisions on behalf of him, while he needed to be liable for eligible debts caused by it. Afterwards, civil law countries gradually adopted the system. Along with the spring up of feminist movement, equality of the sexes is widely accepted, thus the husband or wife can enjoy equal agent right of family affairs, and the legal consequence caused by it should be assumed jointly.In terms of agent right system of family affairs, it is not widely involved in legislation of China, except for a principle and brief stipulation in Interpretation for Law of Marriage Ⅰ. This paper contains the study and discourse of related stipulations on agent right system of family affairs in Chinese law, involving the review and causal analysis of its deficiency, and furtherly gives relevant suggestions on the improvement in legislation combining foreign legislation and views of the scholars. The article concludes introduction, main text and conclusion, with main text divided into four chapters.The first chapter introduces the basic theory of agent right system of family affairs, including concept definition, property and function of agent right of family affairs. Since the body of exertion is limited to the couple and can be interconverted, agent right of family affairs is a special type different from ordinary civil agency. Scope of agency is specified to daily affairs defined by the law. The couple should bear joint liability of consequence resulted by the agency acts. The most important value of agent right system of family affairs is to protect the legitimate rights and interests of bona fide third party, thereby ensuring the safety of transaction, also the healthy, stableand orderly development of the market economy. Besides, the system is a rightful protection of legitimate rights and interests of the husband or wife in family, offering convenience in family life, simplifying trade procedure, and increasing trade efficiency.In the second chapter, related regulation and shortcomings are analyzed. In Chinese history, there was little provision on the agent right system. In Draft Civil Law of Qing Dynasty issued in 1911, the agent right of family affairs was introduced to China for the first time, while the civil law itself was not put into effect. After new China was founded, there was no definition for it in the Law of Marriage approved respectively in 1950 and 1980, either the Amendment to the Marriage Lawpassed in 2001. Until a judicial interpretation for the Law of Marriage was published in 2001 by Supreme People’s Court of the PRC, it is definite that both sides of the husband and wife have the agent right of family affairs. However, legal effect of the judicial interpretation ranks low, which is not enough considering the importance of agent right of family affairs. Besides, there is no explicit definitionas for its application, method of applicability, validity, abuse, limitation and reasons of extinguishment.As to chapter three, reasons of deficiency lies in current Chinese agent right system of family affairs are analyzed. Agent right of family affairs is an outcome from patriarchalismand manus society. Even though the agent power has become one of the rights reflecting equality of husband and wife, it was not widely accepted by the legislators early after enacting of Chinese law of marriage. In Chinese laws, community ownership of postnuptial incomes is accepted for matrimonial regime, without contractual property system popularized; thus joint ownership system could partly settle the matters of disposition for common property of husband and wife and the protection of a bona fides third party, instead of agent right of family affairs. After the founding of PRC, China was under a long-term planned economic system, leading to small marital propertyand economic exchange, also little need for agency of family affairs, which lasted until the reform and opening-up. But due to the lag nature of Chinese legislation, stipulations of agent right system of family affairs fails to keep pace with the times.Last chapter gives the specific suggestions on improvement and perfection for agent right system of family affairs. Legislative level of the agent right system of family affairs should be included into Law of Marriage as part of the fundamental law, and furthermore, explicit stipulations should be made for its scope of application, method of applicability, validity, misuse, limitation and the reason of extinguishment.