On The Relationgship Between Hus Band And Wife Property Contract And Conjugal Gift Contract

Although the sixth section of the judicial interpretation of marriage law three defines the contractual nature of the agreement between the husband and wife before the marriage or the continuation of the marriage relationship,the agreement between the husband and wife,but it does not quell the controversy between theory and practice.Therefore,this article attempts to take the interpretation of the sixth provisions of the judicial interpretation of marriage law three as the center,and discuss the relationship between the marital property system contract and the gift contract between the husband and wife,which is undoubtedly of theoretical and practical significance.This article first discusses the type of the marital property system in China,and thinks that the marriage law of our country is an open type of marital property system.From the perspective of "marriage law" article nineteenth,paragraph first of all types of matrimonial property system;from the content point of view,this does not define for the parties to choose a variety of marital property system specific content,which essentially gives the party autonomy rights;from the nature of the section view,which belongs to the arbitrary norms.Since the marriage law of our country adopts the open agreement of marital property system,it doesn't mean that both parties agree on the agreement that one party's premarital property belongs to the other party or the common agreement between them is husband wife property system contract.Although the separation standard between husband and wife property system and the gift contract between husband and wife is mainly in terms of content standard,objective standard and identity standard in China,the content standard is adopted in judicial practice,but in fact,it is either caught in a vicious circle or equal to nothing.This paper argues that the special status of the subject based on the contract,starting from the principle of private law,unless the parties expressly for the gift,the couple agreed to a party premarital property owned by the other party or all owned jointly agreement shall be considered as the matrimonial property contract.The sixth article of "judicial interpretation of marriage law three" is also the essence of this view.Even if the couple expressly stipulates that it is a gift,because the donation between the couple and the general Party has its particularity,it can not simply apply the 186th provision of the contract law.When we improve our legislation,we should limit the right of revocation of the donor,or give the no fault party the right to claim compensation or the right to return unjust enrichment when it is divorced.Finally,the difference between husband and wife property contract and the gift contract between husband and wife is discussed.