The Realization Path Of Family Agency System In Civil Code

In order to further protect marriage and family relations and maintain transaction security,the family agency system was established in Article 1060 of The Civil Code of China.However,the realization of the family agency system may not meet the original legislative intention at the present stage.Based on the marital relationship between husband and wife,daily family agency should be based on the premise of protecting the marriage and family relationship,and the maintenance of transaction security is more to solve and deal with the needs of the problems between the husband and wife and the third party in the marriage and family.Because the content of family agency is extensive,complex and comprehensive,it is not only the burden debt behavior represented by private lending between husband and wife,but also the content such as the gift and gift of one party of husband and wife to the third party and the transfer of creditor’s rights,it is still necessary to apply family agency.It can be found that many judges in judicial practice are biased in the application of the family agency system,which is limited to the identification of joint debt between husband and wife in practical application.The purpose of this paper is how to give full play to the dual functions of Article 1060 of the Civil Code and put the system into practice.The first part of the article through the study of three typical cases selected,summed up the family agency authority of the scope of content,family agency to the relativity of the breakthrough of the contract,one of the husband and wife on the basis of the family agency of the disposal of the other party’s personal claims of the three focus and analysis.Article in the second part is about the theoretical analysis of housework agent system,the value of housework agency of constitutive requirements,system function,put forward the specification purposes level should first focus on the protection of marriage and family,at the same time for the housework agent system and easily confused with the system of ostensible agency,"used to couples living together" born to distinguish and define of the couple’s debt.The paper third part summarizes and discusses the current household agent system in applicable,encountered many difficulties during the process of implementation: to apply the housework agent scope of standardization,the manifestation of which has a range of daily chores is difficult to define,restrictions on housework agency did not explain,excessive exercise behavior under the consequences are not clear;At present,the practical application scope of family agency system is too narrow,and the application of family agency system is mostly limited to the domain of husband and wife debt.Judges in the field of judicial practice confuse the family agency system with the apparent agency system.All these practical problems are hindering the full realization of the family agency system,and it is urgent to design a set of relatively perfect implementation path to escort it.Therefore,in view of the problems mentioned above,the last part of this paper starts from clarifying the judgment criteria of daily family affairs,explaining how to judge the needs of family life,advocating the parallel enumeration method and elimination method,and giving examples of special investment and financial management behavior to illustrate;Secondly,it proposes to perfect the restriction of the family affairs agency by notifying the third party of the transaction,adopting partial restriction and total restriction,registration and publicity,etc.Thirdly,it is necessary to clarify the legal application of family manifest behavior;Finally,a reasonable and just forward recovery mechanism is proposed,and targeted suggestions are made from four aspects to respond to the focus of controversy and the dilemma of system realization in the case mentioned above,so as to help fully realize the purpose of the family agency system.Although article 1060 of the Civil Code clearly stipulates the family agency system for the first time,it is already a major innovation with historical significance in legislation.However,under the changing external objective conditions,how to better realize the original intention and spirit of the family agency system itself,so that the effectiveness of the system into practice,is the significance of this paper.