The Cases Study Of Legal Force Of The Marital Loyalty Agreement

loyalty between husband and wife is the duty advocated by Marriage Law of the People's Republic of China,which is beneficial to maintaining the stability of marital and family relations.Marriage Law of the People's Republic of China stipulates violation of the duty of loyalty as an advocacy clause,but it doesn't explicitly stipulate the legal consequences of such violation.However,both litigants can still agree on a loyalty agreement as a legal protection to fu lfill the duty of loyalty,according to General Principles of Civil Law of the People's Republic of China and Contract Law of the People's Republic of China.By analyzing 49 samples of effective judgment of legal cases in relation to the loyalty agreement between husband and wife on 2 websites,PKULAW.CN and WENSHU.COURT.GOV.CN,the author find that there is no definite conclusion on the legal effects on the loyalty agreement between husband and wife in judicial practice,and the court adopts two entirely d ifferent results of judgment,valid judgment and invalid judgment,on the issue of the legal effect on the loyalty agreement,and that some courts even avoid the issue of legal effect on the loyalty agreement.The main focus on such cases lies in four disp utes: whether the loyalty agreement between husband and wife should be endowed with legal effect;which law among Contract Law of the People's Republic of China,Marriage Law of the People's Republic of China and General Principles of Civil Law of the People's Republic of China should be applied to define the basis of such legal effect;whether the adducing evidence system should be partial to the observant party considering the difficulties in obtaining evidence;and how to define the appropriate sum of breach of contract damages and compensation damages agreed in the loyalty agreement between husband and wife.The rationality of the loyalty agreement conditionally adjusted by Contract Law of the People's Republic of China is that the clauses concerning property rights in such loyalty agreement are essentially belonging to a form of contract and that the duty of fidelity between husband and wife doesn't violate personal liberty but promote the stability of marriage on the contrary,which embody the principle of will autonomy in Civil Law.In consideration of conducts of violating the loyalty agreement can be concealing,the design of adducing evidence system should be inclined to the observant party within limits.As for the definite sum of compensation damages agreed by husband and wife in such loyalty agreement,it should be regarded as breach of contract damages predetermined by both parties,and the court should respect such agreement but can properly adjust the sum according to specific circumstances.In the last chapter of this essay,the author puts forward some relevant solutions combing the background of compiling Code of Civil Law and some practical experience in other foreign countries: Firstly,determine the judging standards of legal effects on the loyalty agreement between husband and wife,preliminarily classify the clauses in the loyalty agreement and legalize the effects on clauses concerning property rights;Secondly,through defining the testification standard of disloyal conducts,dealing with burden of proof by defendant on the merits of each case and broadening the channels and means of obtaining evidence,balance the current situation of difficulties in obtaining evidence of disloyal conducts;Th irdly,define the methods of bearing responsibility for breach of contract,add a non-money compensation for spiritual damages method for breach of contract,and comfort the observant party's spiritual damages.