The Study On Contractual Property System For Chinese Couples

In 2001,the newly-revised Marriage Law stipulates a contractual property system for Chinese couples.Specifically,Chinese marital property law composes of legal property and contractual property systems.The latter is used to stipulate the ownership,possession,usage,management,earnings,disposal and other rights and entitlements of all the pre-and-post nuptial properties of a couple through making and entering into an agreement.Based on different levels of legislative restrictions,the marital contractual property system can be further divided into creative and selective types.Creative type is known as open type.Contract enacted in such type is free of any legislative regulation,whether in terms of contract form or contents,and so long as it does not violate relevant legal legislation,contract established in this type can include any contents to reflect the autonomy of will.Whereas selective type is known as closed type,in which contract has to be enacted in the form and contents as stipulated by relevant laws and regulations,and the parties concerned may only be allowed to include legally-stipulated contents to their contract,otherwise the contract made shall become invalid.In other words,only legally-stipulated contractual forms and contents are available for the selection of parties concerned to establish their contracts,otherwise their contracts established shall become invalid.To sign an open or closed type of property agreement is a contentious issue both in academic and judicial circles.Those who prefer open type believe that any property whose ownership is already defined by a couple may actually constitute an agreement reflecting more about the autonomy of will,and no excessive strict legislative regulation shall be allowed to impose on it,so open legislation shall be adopted to freely enact a marital contract so long it does run against any law.Whereas selective supporters believe that there is already three types of matrimonial property regimes in existing Marriage Law,in which the 19th Article stipulates that "separate possession"means each side shall be entitled to the right of their own properties,"joint possession"means common co-ownership,while "separate partial possession and joint partial possession" refers to limited degree of joint ownership.Marriage parties are only allowed one of the three choices.The author of this article is totally agreed with the latter,that is,selective property agreement is suitable for our national conditions,mainly based on the following grounds:First is the legislative account supported with examples and the explanatory results of existing laws.According to the results of analysis and study on Article 19 under Marriage Law,exemplifying account is adopted by legislator to explain such Article,neither with bottom-line supplement content,nor with generalizing conclusion.Under the context of streamlined legislation in China,one such article,which is singled out and dedicated to marriage property stipulation in such complex and roundabout expression,has fully conveyed the intention of legislator,that is,to put restriction on the marriage property agreement.If creative type is preferred,only one sentence is enough to summarize:"marriage parties shall be allowed to separately reach an agreement on the ownership of their property whether its existence is before or during marital relationship".Therefore,we should not deviate from the legislative regulation to make further extensions.Second is the legislative evolvement and progress.the Marriage Law of P.R.C,promulgated in Sept.,1980,only has one word to stipulate marriage property system:"except for otherwise agreed between the two sides",which means no limitation on the agreement of marriage property.After the revision on 29 April 2001,Article 19 is revised to expound the marriage property,which is unnecessary if the property agreement is in creative type.Third is the particular relationship of marriage and family.Marriage is,as a matter of fact,a contractual relationship,but based on special personal identity.Family is a social unit sustained with love and kept with an emotional tie,so it is unreasonable to treat our family members like others in such unemotional and impersonal way,nor should callous laws be employed to define the relationship between family members and regulate the matters between them.If marriage property agreement can be made in whichever contents and form,then someone with ulterior motive may take advantage of his/her predominant role,either emotionally or physically,in the family to force or inveigle the other side into his/her unreasonable requirement.The other side,however,has to make concessions for the interest of family or for emotional consideration,but actually that will hurt the latter's interest.In the author's opinion,any agreement that breaks any of the three matrimonial property regimes shall be deemed invalid,nor shall such agreement be allowed to transform into a gift agreement between husband and wife.The author suggests that the contractual property system for Chinese couples shall be further improved in terms of regulations,detailed revision and publications,so as to make relevant social behavior and norm clearer and guide judicial judgment and practice.