Discussion On The Conflict And Applicable Law Of Marital Contract And Real Estate PropertyRights

According to the regulation of marriage law in our country, without statutory basis, it’s joint ownership between husband and wife that implementing common property system, no matter the registration of real estate is one or both husband and wife. But marriage law follows the autonomy and freedom of contract between husband and wife, they can be free to agree on the ownership of the property, and the agreement is legally restrictive. But if it restricts only between husband and wife or to the third person is not certain. According to the property law, the real estate property rights change rules implement the principle of registration, it changes after register. In comparison, there is competition and coincidence between China’s property law and marriage law in the field of marriage and family marital property relationship. In fact, in judicial practice, many real estate property rights disputes occurred in the field of marriage and family, but there’s no specific provision in the related laws or judicial interpretations to solve the contradictory, and it leads to the phenomenon of similar case with different sentence. In view of this, the paper intends to investigate the conflict and applicable law of marital property contract with real property rights in a recently controversial case. This paper is mainly divided into the following sections:The first part based on the case of "tang caller2 statutory succession dispute" whose first sentence is different to the second leads to the core of this article:If marital property contract can directly make alterative effectiveness on real estate property rights.The second part consists of the chapter 2, chapter 3 and chapter 4. The second chapter expounds the legislative model of real estate property right alteration in different legal system and relevant countries, and the biggest differentia between them is the force of law of registration. In view of this, the article investigates the function of registration through the analysis of the public and credibility, then it makes a conclusion that the essence of registration is for the uncertainly third person. In the third chapter, the article enumerates the division of property in divorce, division of marital property agreement, agreement of the marital property system of contract, couple donative contract as an example of four kinds of marital property contract, and summarizes extract common:The subject; The background; The custom. These different special properties from general contract make us think that there’s differences between the real estate property rights of marital property contract and the property law rules. The fourth chapter of the article mainly analyzes the appearance of conflict of laws between our marriage law and property law, and prove the root cause of the conflict rules, namely, in short, the property law is in order to make a clear ownership ensure the safety of transactions, maintaining trading order as own duty, the marriage law is to sustain the relationship, maintaining family stability and harmonious as the goal, so for adjustment in the field of marital property, the former pays attention to calculate accurately, clearly and given to the effect of expression, the latter pays attention to marriage and family stable and harmonious,and couples may obscure the concept of personal interests due to the property presumption of concerted efforts during the marriage. Thus, a preliminary conclusion is made in chapter 5:the real estate property right change rules should maintain its tolerance in the field of marriage and family, and the article gives the corresponding reasons.The third part is composed of chapter 6, chapter 7. Sixth chapter mainly discusses the internal force of real estate property contract between a couple-the specific rules of real estate property rights changes between husband and wife by referencing the concept of " The true property rights ", clarifying the rules of equity between the true property rights and the legal property rights in the process of circulation and transaction of property rights. The seventh chapter discusses the external effect of marital property contract-if it can be against a third person. The argument of this article is when the property contract between husband and wife does not involve the third person, the holder of true property rights shall give priority to the legal property rights. When the disposed property in couple’s property contract going to the circulation field involves the third person, the protection of latter should be first, namely, the marital property contract have no effect against a third person.