| At present,the data of divorce in China shows a great growth trend,and the disputes caused by divorce are increasingly diverse and complex.When the husband and wife divorce by agreement,they will inevitably involve the handling of the real estate,and the common practice is that both parties agree to return the real estate to one party and the other party will compensate.However,after the divorce of the husband and the wife,there is a common situation that the house has not been changed for many years due to various reasons,which also easily leads to the dispute of execution objection between the third party creditor and the husband and wife.There are also big differences on the understanding of the effect of divorce agreement in the academic circles.Whether the divorce real estate division agreement has the effect of real right or not,there are disputes on whether the divorce real estate division agreement can cause the change of real right.In addition,the disputes caused by such issues often involve many department laws,such as marriage law,property law,contract law and other civil legal norms.In judicial practice As a result,the judges have shown different ways of thinking,which often leads to "different judgments in the same case".Starting from the judicial practice of the court,this paper takes the effect of the creditor’s rights of the real estate division agreement as the center point to distinguish and understand the similar concepts of the divorce real estate division agreement,through the concept comparison to clarify the characteristics and nature of the divorce real estate division agreement,and analyzes the problem of the disunity of the judgment from the legal theory.This paper analyzes the effect of the divorce real estate division agreement from the academic point of view,identifies the similar concepts with the real estate division agreement,briefly introduces the current theoretical differences on the effect of the divorce real estate division agreement,expounds the different views on the effect of the divorce real estate division agreement,and concludes that the divorce real estate division agreement is an identity share agreement It can not break through the formalism principle of real right change in our country,and can’t cause real right change without registration.It also analyzes the cases that exist in reality according to the divorce real estate division agreement.At the same time,on the basis of confirming that the divorce real estate division agreement has the nature of creditor’s rights,this paper discusses the liability for breach of contract of the party in breach of contract who disposes of the house without authorization,and analyzes and constructs the path of applying the identity agreement to the property law.The first part mainly compares the concept of divorce real estate division agreement with that of husband and wife’s agreed property system,gift contract,property division agreement based on divorce and property division agreement within marriage,so as to identify the characteristics of divorce real estate division agreement,and expounds the concept and characteristics of divorce division agreement by distinguishing with similar concepts.The second part analyzes the effect of divorce real estate division agreement and the change of real right,and demonstrates the effect of creditor’s rights of divorce real estate division agreement from two parts,that is,divorce real estate division agreement is an identity common property division agreement,based on which the former spouse of the agreement has the right to claim for the property involved in the case,which can not resist the execution of general money creditor’s rights.The divorce real estate division agreement can’t cause the real right change,because the real estate real right change can’t break through the principle of creditor’s rights formalism,and the complete disposition right of the house needs to be publicized.At the same time,this paper analyzes the lawsuit of execution objection caused by the divorce real estate division agreement in practice,and holds that the reason for the lawsuit of execution objection lies in the fact that the validity of the divorce real estate division agreement cannot be accurately defined in the academic circle and practice,and the essence of execution objection lies in the conflict between the basic right of the application executor and the right claimed by the outsider In order to solve the above conflicts,it is necessary to consider the factors such as the time of the right formation and the fault degree of the outsider at the same time,rather than the parties’ determination that the divorce real estate division agreement has the real right effect based on the confrontation and execution of the divorce real estate division agreement.The third part analyzes the liability for breach of contract in the case of unauthorized disposal by the name registrant.First,it analyzes the legitimacy of the liability for breach of contract in the case of unauthorized disposal by the name registrant,that is,the basis of the liability for breach of contract and the rules applicable to the liability for breach of contract.The different liability for breach of contract in the case of transfer and non transfer of ownership resulted from the unauthorized disposal by the name registrant The registration party shall bear the liability for breach of contract for continued performance,and in what circumstances shall it bear the liability for breach of contract for continued performance;the standard of liability for breach of contract for compensation of loss and the scope of compensation for loss shall be applied in the case that the property ownership has been transferred and the performance cannot be performed. |
