Research On The Law Application Of Marital Agreement On Housing Property

With the rapid development of Chinese economy, and the improvement of the resident income, the marital property relationship become increasingly complicated, and couples are becoming more and more self-aware. Under this background, to better meets the various needs of the marriage life, couples become more intent to make property agreement. However, because of the absence of definite regulation, as well as the features of couple’s property agreement which make its legal nature seems more obscure, different judgements on the same cases appears frequently in juridical practice,the problem is specially obvious in the cases involving the variation of real estate’s ownership between husband and wife. The research on this problem is of both profound realistic and theoretical meaning, for that the law application of the interspousal property agreement on the ownership variation of real estates involves two legal issues: the distinction between promissory spouse property agreement and the interspousal grant act, and the conflict between the legal force of promissory spouse property agreement and the demonstrative principle of real right.the Interpretations of the Supreme People’s Court about Several Issues Concerning the Application of the Marriage Law(III) has clearly provide the interspousal grant acts about real estates. However, the interpretation hasn’t settle the disagreements in juridical practice and academic circles on the issue of the law application of Interspousal Property Agreement, and the different jugements on the same cases still exist. To be specific, the disagreements are about two issues: whether the regulation has clarified that the variation of the real estates between husband and wife is a grant act, and the legal force of the act. The domestic relevant theoretical research involving the Legislation pattern of Chinese promissory spouse property system, the legal nature and legal application of the interspousal property agreement, and the conflict between its legal force and the demonstrative principle of real right.To specify the factors which lead to the different judgements on the same cases, this thesis makes a statistical analysis on a certain amount of relevant cases, and finds out that on the legal nature of all kinds of interspousal property agreement about the variation of real estate’s ownership, there exists two different viewpoints——grant act and promissory spouse property agreement, and that less than half of the judgements applicate the interpretation above-mentioned. Through empirical study, this thesis concludes three factors which lead to the different judgements on the same cases: different viewpoint on the subject matter of the grant contract, the 19 th clause of the Marriage Law, and the law application rules on the interspousal property agreement.In order to figure out the three different viewpoints above-mentioned, this thesis makes a theoretical research on the relevant issues, and put forward a viewpoint that there are three factors need to be considered when identifying the legal nature of the interspousal property agreement: the way of variation of the property ownership, whether there is exchange of economic interests, and whether the agreement involves content about a complete variation of property ownership.On the basis of the researches above, this thesis specify the law application of the interspousal property agreement about the variation of real estate’s ownership as two different kinds. For the interspousal property agreement that alters the property ownership or part of which from husband to wife, it shall be regarded as gift contract, and subject to the 186 th clause of the Contract Law, meanwhile, the verdict shall also consider the Specificity of the interspousal grant, and applicate relevant regulation of the Contract law. For the interspousal property agreement that alters the property ownership or part of which from individual to joint possession, it shall be regarded as promissory spouse property agreement, and subject to the 19 th clause of the Marriage Law.