Research On The Change Of Real Property Right Arising From Contractual Regime As To Marital Property

Matrimonial property has been evolved for a long time from the conception of trousseau since the Roman law.As one of the important contents in marriage law,matrimonial property may be divided into statutory regime and contractual regime as to marital property.Contractual regime also refers to contract relative to marital property or to marital property agreement,which has a prior effect over the statutory property regime.According to the present legislation,the amended Marriage Law of P.R.C in 2001(Article 19)provided for several issues of contractual regime such as its contents,forms and effects,but the provisions are too simple,which may lead to controversy in comprehension and application in judicial practice.Particularly,with regard to the rule of the transfer of real property right under marital property agreementthere are three doctrines arise,which refer to theobligatory right formalist,obligatory right will and the transfer of property right arising from non-legal act.Unfortunately,this situation has caused the phenomenon of different court decisions on similar cases which presents no equal value of the orientation of the law.First,the change of real property right under contractual regime does not apply to the principle of obligatory right formalist.(1)As to the causes of misjudgment,the confusion of the concept of contractual regime and the contract of gift as well as disputes on the selective or free legislative model as to contractual regime has resulted in the misjudgments in judicial practice.However,according to the latest judicial interpretations,contractual regime in the current marriage law has adopted a selective legislative model,therefore the gift contract between married couples shall apply to the rules of the Contract Law and the Property law,and the contractual regime shall apply to the rules of the Marriage Law.(2)As to the nature of act,contractual regime is an identity act rather than a property act which subordinate to the identity of the married couple.(3)As to property transfer,the subject does not enter into the market circulation,not pursue the value of the exchange of goods,and property rights are not necessarily to be transferred between the parties,so that it does no harm to the safe transaction and without the need for publicity.Second,the change of property right under contractual regime does not apply to the principle of the obligatory right will.(1)As to the current provisions of the Property Law,there are only three real property rights apply to the principle of obligatory right will exceptionally,which have special reasons and not in conform with the characteristics of contractual regime.(2)As to the causes of the change of real right,the supporters of the obligatory right will,on the one hand,mistaking the concept of "non legal act" with that of "the causes of the change of real right of non legal act",on the other hand,ignoring that the marital property agreement is not a single act,but a legal fact constituted by a legal action and a legal fact compounded.(3)As to the perspectives of meaning,will and systematization,because of the legislative model of contractual regime on our marriage law is a selective one rather than a free choice one.It is to say that the models of contractual regime as to marital properties must be specified by law,where there is no explicit provision of the law,the parties shall not choose to apply.Therefore,whether it is the statutory regime or the contractual regime as to marital property,the fundamental reason of obtaining real right without publicity are based on the specific provisions of the marriage law.Third,contractual regime shall apply to the principle of the transfer of real right under non-legal act.Marital property agreement is similar to the transfer of real property right arising from non-legal act in terms of no harm to safe trade without publicity,itself has publicity,and is similar to inheritance in terms of form,contents and comparative law.In the term of internal effect of contractual regime,it may subject to article 29 of Property Law of P.R.C which provided for the rules of inheritance;in the term of external effect,it may subject to article 31 of Property Law which stipulated for the rules of the transfer of real property right under non-legal act.In this way,both the internal and the external effect of contractual regime could be effectively solved,which is killing two birds with one stone.In sum,property regime is related to safe transaction and third party protection,therefore scientific regulations on contractual regime as to marital property is significant to the stabilization of families and economies and to the settling of marriage disputes.The way is to perfect the concerning legal contents in the present Marriage Law,either provide for that marital property agreement shall subject to the stipulations on the rules of the change of real property right arising from non-legal act,or draw lessons from the civil laws of Germany,Switzerland and Taiwan to establish the marital property register and clearly outline the content cohesion and the legal rank between the real estate register and the marital property register.