A Study On The Legal Effect Of Husband And Wife Loyalty Agreement In China

In recent years,with the continuous improvement of our country economic level and social cultural openness degree increasing,the ideas of people increasingly diversified,the traditional view of marriage also great changes have taken place,"extramarital affairs","small three" find the phenomenon such as frequent occurrence,is now in order to be able to effectively regulate the behavior of each other between husband and wife,protect the legitimate rights and interests of their own,and enhance the sense of trust between the husband and wife,husband and wife loyalty agreement is generalized.Marital loyalty agreement is in the background of social transformation and change of the traditional marriage values gradually and derivative products,under the existence of maintaining the stability of marriage and family relations,make up for the deficiency of the current marriage law in the legislation,but because of the lag of the current laws making clear the effectiveness of the husband and wife loyalty agreement problem caused wide public concern and discussion,the theoretical circle and thus formed the different theory viewpoint.At the same time,due to the legislative blank of conjugal loyalty agreement,there is a lack of uniform judicial benchmark,and the phenomenon of different judgments of the same case also appears in judicial practice,which greatly affects the judicial impartiality and legal authority.Based on this,the author hopes to conduct a more in-depth and systematic research on the types of conjugal loyalty agreements and their legal effects on the basis of previous discussions,hoping that it can be conducive to the smooth resolution of disputes related to conjugal loyalty agreements,so as to enhance the happiness of conjugal life and promote the improvement of China's legislative system.This paper mainly discusses the legal issues of clarifying the validity of conjugal loyalty agreement from five aspects:In fully analysis and understanding in the academic circle different scholars from multiple perspectives on the husband and wife after the loyalty agreement put forward the concept of point of view,and it is concluded that the author himself couple loyalty agreement definition,namely the loyalty agreement is a legal relationship of husband and wife of husband and wife,on the basis of equal consultation,based on a common intention,signed by agreement the parties shall abide by the faithful obligations between husband and wife,if in violation of the agreement should bear corresponding responsibility.To summarize the common types of conjugal loyalty agreements in judicial practice,that is,most conjugal loyalty agreements in marriage involve the property payment or personal rights of the parties,so it is considered that they should be classified according to the contents of different liability assumption clauses involved in conjugal loyalty agreements.According to the liability form of the breaching party,it can be divided into three types,namely property couple loyalty agreement,personal couple loyalty agreement and property and personal couple loyalty agreement.From the point of view of theory,this paper sorts out the different views of different scholars in the academic circle on the validity of conjugal loyalty agreement,and concludes that scholars' identification of the validity of conjugal loyalty agreement is mainly divided into effective theory,invalid theory and compromise theory.Some scholars put forward that the validity of the recognition of conjugal loyalty agreement is the concrete embodiment of the principle of autonomy of our private law and the embodiment of the stipulation that husband and wife should be faithful to each other mentioned in article four of marriage law.Some scholars think that the validity of recognition of conjugal loyalty agreement will violate the principle of damage compensation stipulated by the current law in China.From the judicial practice,the analysis around the people's court in the judicial practice point of view,and it is concluded that the majority of the people's court in practice for the husband and wife loyalty agreement hold a negative attitude,think loyalty agreement shall belong to the category of moral emotion field,should be in line with the principle of good faith by the parties fulfill voluntarily,and therefore are not within the scope of the people's court accepts the.There are also a small number of people's courts on the basis of civil subjects engaged in civil legal acts to recognize its effectiveness.In addition,some people's courts think that the validity should be recognized according to the different contents of the conjugal loyalty agreement.Trying to comb around the academic circle and judicial practice,the court based on different points of view,if think marital loyalty agreement signed involving personal relations shall not recognize its effect on the legislation,if involving property relationship,you should determine its effectiveness in the legislation,but in the clear property class when a couple effectiveness loyalty agreement,if the amount of the agreement is too high,you need to the people's court shall be adjusted on the basis of discretion in combination with the actual situation.At the same time,the author thinks that it is necessary to add legal provisions on the validity of conjugal loyalty agreement in the marriage law,and recognize the justice ability of article four of the marriage law.