| The doctrinal system of civil law in China is based on the property law.The status law lacks the corresponding systematic basic theory,which leads to the disputes arising from the change of status relationship can not be properly resolved.In judicial practice,the situation of different judgments in the same case is very serious.Therefore,this paper argues that it is necessary to construct a complete theoretical system of identity law from the basis of the identity agreement.The legal issues of identity agreement should be resolved under the framework of the identity law,so as to realize the completeness of the teaching system of civil law and avoid the conflict between identity law and property law.Identity behavior is the legal behavior that leads to the change of identity relationship,and the identity behavior made by both parties based on the consistent expression of will is the identity relationship agreement.Identity relationship is not only the legal effect target of identity relationship agreement,but also the object of identity relationship agreement.Therefore,the identity relationship agreement does not produce the relationship of debt like the contract of creditor’s rights.It is more similar to the real right contract.It has been performed when the contract comes into effect,which directly produces the legal consequences of changing the legal relationship,and does not involve the problem of contract performance.The key to judge whether an agreement belongs to an identity relationship agreement is whether it will produce legal consequences that change the identity relationship.The agreement that cannot directly change the identity relationship is not an identity relationship agreement.For example:Although the subject of loyalty agreement has the status of husband and wife,and the content of the agreement contains the rights and obligations between husband and wife,it does not produce the legal effect of the change of identity relationship,so it is not an identity relationship agreement.The core clause of the legal application of the identity relationship agreement is article 464(2)of the civil code,which stipulates that in the absence of relevant provisions,the identity relationship agreement can refer to the provisions of the contract.The understanding of the application of reference is the key to the legal application of identity relationship agreement.The nature of referential application is authorized analogical application,and its purpose is to fill the existing legal loopholes.Therefore,only when the identity relationship agreement lacks relevant legal provisions and constitutes a legal loophole,can it refer to the provisions of the contract.Therefore,the validity of the identity relationship agreement can refer to the legal act system of the general provisions when there is no provision in the identity law.At the same time,referential application belongs to the extended application of the referenced clause,and can not be applied twice after referential application.The typical identity relationship agreements include marriage,marital property system,divorce agreement,etc.Among them,the marriage and family section of the civil code has complete provisions on the effectiveness of marriage,but it lacks relevant provisions on the establishment and effectiveness of marriage.At this time,we can refer to the provisions of the applicable legal act system to judge whether marriage is established and effective.Capacity for civil conduct is an important part of the legal act system.The relevant provisions of capacity for civil conduct can be directly applied to identity act.The contractual property system of husband and wife is the agreement between husband and wife on the property order of the relationship between husband and wife,which belongs to the change of the relationship between husband and wife.It is a typical identity relationship agreement.The contractual property system of husband and wife can directly change the property order between husband and wife,and the change of property order leads to the legal effect of the change of property right.Therefore,the property system agreed by husband and wife will not directly produce the legal consequences of the change of property right,and the change of property right caused by the property system agreed by husband and wife is not based on the change of property right of legal act.The contractual property system is an important part of the relationship between husband and wife,which should be stable.Loyalty agreement does not have such stability,so no matter what the content of loyalty agreement is,it can not constitute a marital agreement property system with effective conditions.The agreement on the content of property in the divorce agreement includes the emotion between husband and wife,the burden of children’s support obligation,and the compensation for the fault in marriage.It is essentially different from the debtor’s free transfer of property in the creditor’s cancellation right system.The creditor can not cancel the content of property in the divorce agreement according to the creditor’s cancellation right system.At the same time,the property content in the divorce agreement is the agreement on the property order after divorce.Canceling this property order will lead to the chaos of the property order after divorce,which also conflicts with the value orientation of pursuing stability in the identity relationship agreement. |
