Bostowal Or Common:to Define The Nature Of The Conjugal Property Attribution Stipulation

Marital property agreement and donation system belong to different legal concepts and categories,this should not create confusion on the law applicable,but say not clear in meaning,marital property ownership prescribed seems can be identified as marital property agreement can also be understood as gift between husband and wife,but the two different legal effect determines the can only choose one suitable.The qualitative difference between husband and wife's property ownership agreement directly produces different views of law application,which has generated a lot of controversy in theory and judicial practice.The author through to the current controversy surrounding the nature of the marital property ownership agreed theory and practice conflict problem,with conventional marital property system and marital donative two dimensions on the theoretical analysis,combined with the husband and wife property ownership prescribed in the main three forms of ownership,eventually return to the “marriage law”article 19 agreed property system of husband and wife as well as the marriage law judicial interpretation(3)of article 6 of the couple a gift of understanding,and puts forward legislative suggestions,in order to make the nature of the marital property ownership agreed that more clear.This paper includes four parts:The first part: to tease out the specific performance of marital property.Through the found of judicial precedent dispute mainly focus on all side of husband and wife property prescribed for common,all property of one party is agreed upon by the other party,A common property agreement shall be owned by one party for all three types of the legal nature of cognizance.In theory,there are four kinds of legal opinions on this theory: the specific analysis of the marital property system;Article 19 of the marriage law shall be applied uniformly under freestyle convention;Applicable to article 6 of the judicial interpretation of marriage law(3)and the provisions of the gift contract;As a special gift for rules for changing circumstances,but the above four kinds of legal application path although has merit but is not enough to properly solve marital property ownership agreement applicable law issues.The second part: return to our country to stipulate husband and wife property system understanding.From the definition of literal interpretation,historical explanation,the explanation of the legislator's purpose,and the restriction of the marital property system,deducing legal definition of the property system is derived.Back in the marital property system is husband and wife common property system and separate property,and the two behind the legal support,should the choice of the marital property system range,not including all property of one party is agreed upon by the other party and a common property agreement shall be owned by one party of two forms of ownership agreement.The third part: whether the property ownership type of the three kinds of marital property which is controversial should be determined as the marital property contract or the specific analysis of the gift between husband and wife.Husband and wife agreed property from one side to the other party circumstances,identify as husband and wife property agreement may lead to marital property interest unbalance,even moral hazard through marriage for property,according to the receiving party fails to pay the corresponding property price free sex characteristics,shall be deemed to a gift between husband and wife;Husband and wife agreed joint property owned by one party deviated from the legislative purpose of the marriage law,also should not be regarded as a couples property agreement,this agreement will not lead to the blending of the donor,there is no identified obstacle of the gift between husband and wife.The husband and wife agree that the property belongs to the common situation of both parties,although accords with the feature of the bestowal,but the general system and limited system together itself contains the meaning of “bestowal”,from the perspective of maintaining the marriage and family relations considerations should priority for“marriage law”as couple s property agreement.Finally,based on the couples property agreement content and the effect is not clear,gift between husband and wife that legislation present situation is not assured,the author put forward the corresponding legislative suggestions that should be “marriage law” in the second paragraph of the first paragraph of article 19 of the first sentence and is modified to “husband and wife obtained during the existence of the belongings before marriage and marriage relationship agreed to jointly owned property,all of their respective,or part of the common parts,partial ownership,binding on both sides of husband and wife,should perform their respective obligations in accordance with the contract,no unauthorized alteration or cancellation is allowed”;Will the marriage law judicial interpretation(3)of article 6 is amended as “the couple agreed to marriage or marriage relationship during the period of duration,the husband and wife agree that one party's property or common property belongs to the other party alone,but not expressly agreed upon nature can be regarded as a gift,the people's court may,in accordance with the relevant provisions of the gift contract law,to deal with it”.