On The Legal Construction Of Family Agent Right Between Husband And Wife

As an important part of the right of spouses,the family agency rights between husband and wife come from the Roman family appointment system.Later,with the evolution of the times,many countries and regions in the world have established this system.In ancient China,a relatively complete family agency system was established.However,unfortunately,since the establishment of the People's Republic of China,many factors have affected China's establishment of the legal system.Although our country's legislation is lacking,the academic community has been paying attention to the daily family agency system.The importance of this system has basically reached a consensus.China has not stipulated this right in legislation.Since the founding of the People's Republic of China,three amendments to the Marriage Law have intentionally or unintentionally avoided this right.At the same time,in the practice of life,a large number of cases need to be solved by family agency,which is also the requirement of protecting bona fide third party.However,due to the fact that the high-ranking law has not formally established the right of family agency,the application of the right of family agency in judicial activities in various places is also a mess.In similar cases,there are many different judgments,which hinder the construction of a society ruled by law.In addition to safeguarding the interests of bona fide third party,this paper argues that the family agency system can also protect the interests of spouses,which conforms to the basic principle of equality between men and women in China.Moreover,the establishment of family agency in the history of China's legal system is traceable,and the existing legal provisions also have a rudimentary form in this regard.To sum up,this paper holds that it is urgent and realistic to establish the right of family agency between husband and wife in China,and the legal status of this right should be clarified as soon as possible.Although in the relevant judicial interpretation and local provisions,the substantive content and relevant provisions of the right of family agency appear,but this paper argues that because of its low rank,it can't make up for the lack of the impact of this right in the legislative level in the settlement of disputes.Therefore,this article holds that at the legislative level,not only should this right be established in the marriage law,but also family agency should be added in the chapter of the civil code on agency to clarify its status.The exercising subject should include men and women with the appearance of de facto marriage.The exercising scope can also include small installment payment and investment and financial management into the scope of daily housework.Generally speaking,the disposal of real estate should not belong to daily housework,but in emergency situations,the scope of household agent can also be extended to such behavior.When disputes arise,besides one spouse bearing the burden of proof,the third person should bear a certain burden of proof.