On The Transfer Of Real Property Right In Marital Property Relationship

In 2007,Property Law of the People's Republic of China(PLPRC)established the transfer of real property right mode that the creditor's rights formalism for the principle,creditor's rights meaning for the exception.Marriage law of the People's Republic of China(MLPRC)does not contain definitely the rules of marital property relationship of the transfer of real property right.Due to the lack of real right change rules in MLPRC,there are always some issues in the law practice that real rights changes in marital property relationship what mode to take.Therefore,this article will use the type of marital property relations as the breakthrough point,and comb the different types of marriage property relationship of the transfer of real property right under the basic theory of real right change,and hope to be able to provide some necessary reference for the improvement of the system of marital property law.In addition to the preface and epilogue,this article is divided into five parts.The first part mainly introduces the controversial issues through the specific case of marital property system of real right changes in this part.In order to solve these disputes,the author believes that only identify the type of husband and wife property relationship,can we identify the marriage property relationship of the transfer of real property right.The second part mainly analyzes the basic theory of marital property relationship of the transfer of real property right.The basic theory contains three aspects.Firstly,marital property relationship is divided into two types.One is based on statutory system concerning marital property;the second is based on marital property agreement.The latter include both contractual system as to marital property and other marital property agreement(it also called the general marital property agreement in this article).Secondly,this part introduces how to distinguish between similar concepts in marital property relations.Finally,this part introduces the basic theory of real right change.In the property law,there are two type of real right change.One is based on act of representation;other is not based on act of representation.The former includes both meaning mode and formalism mode.The formalism mode only need to complete the real right of the public(a part of publication system of real right)in two mode.Then,the latter needn't to complete the real right of the public.The third part mainly makes an analysis of the transfer of real property right in statutory system concerning marital property.Firstly,in statutory system concerning marital property,whether change of real right need to complete the real right of the public.To solve the question,this part believes that change of real right in statutory system concerning marital property belongs to the type that is not based on act of representation.So,the change of real right needn't to complete the real right of the public in statutory system concerning marital property.Secondly,the article introduces particularly the reason that coupe can gain the added value of a personal property when the add vale stem from efforts of coupe under statutory system concerning marital property.Finally,the article introduces some legislative proposal about the change of real right in statutory system concerning marital property.The fourth part mainly addresses the transfer of real property right in contractual system as to marital property.Firstly,the article introduces two issues about property right change in contractual system as to marital property.One is whether the legislative mode of contractual system as to marital property and the transfer of real property right has contact;other is whether change of real right need to complete the real right of the public(a part of publication system of real right)in contractual system as to marital property.Secondly,to solve above issues,this part analyses the conclusion that the property change be connected with the abstract and general poverty consensus of contractual system,and has nothing to do with the legislative mode of contractual system as to marital property.Finally,combined with above analysis and MLPRC,this part also draws the conclusion that the property change in contractual system as to marital common property(a type of contractual system as to marital property)belongs to the range of the formalism mode based on act of representation.So,it needn't to complete the real right of the public.The fifth part mainly discusses the situation that the general marital property agreements as a result of the transfer of real property right.Firstly,this part introduces the general marital property agreements' historical characteristics and the expansion trend.Secondly,the general marital property agreements are typical of gift and division agreement in marital property relationship.Based on the above analysis,this part respectively introduces that the transfer of real property right and some legislative proposals of both.