Research On Legal Matters Of The Marital Loyalty Agreement In China

With the development of society and economy,people’s minds are becoming more and more open,marital infidelity,adultery,whoring and other phenomena occur frequently.It is difficult to restrict marital infidelity only by morality.In order to maintain the loyalty obligation between husband and wife,the number of loyalty agreements signed by husband and wife shows an obvious upward trend,which leads to more and more disputes.If we do not regulate the signing of marital loyalty agreement from the perspective of law,it will expand the protection scope of marital loyalty obligation and breed various agreements restricting personal freedom,such as "empty bed agreement" and "late return agreement",which will lead to social problems.After the promulgation of The Civil Code,legislators intend to build a bridge between identity law and property law through article 464 of the contract series,so as to make the civil law system more systematic.Therefore,article 464 of The Civil Code should be used as an opportunity to focus on the loyalty of husband and wife,remove the factors hindering the legalization of the agreement,and bring it into the legal regulatory framework.Through investigating the opinions of the public,sorting out the statistics of representative judgment cases in the past ten years,it is found that there is a certain gap between the current legal norms for husband and wife loyalty agreements and the needs of the public.There are the following problems in the marital loyalty agreement:Although paragraph2 of article 464 of the contract part of The Civil Law expands the scope of application of the contract part,it is still uncertain whether to include the marital loyalty agreement;The lack of clear guidance leads to the lack of standardization and preciseness of the agreement;The question of the suitability of the agreement is unclear due to the difference in the determination of the morality and legality of the duty of loyalty to the spouses;Due to the different consideration of the ethical and contractual value of the agreement,the determination of the effectiveness of the agreement is not unified;Due to the lack of a unified compensation standard,the amount of liquidated damages is difficult to measure.A marital loyalty agreement voluntarily converts legal obligations into contractual obligations,in line with legal provisions.Solving the existing problems and improving the relevant legal regulations can better play its role in resolving disputes in marriage and maintaining the feelings of both parties.Therefore,based on the current situation of China’s development and summarizing the marriage system of foreign countries,the following suggestions for improvement are put forward:First,we should unify the trial ideas in judicial practice,clearly refer to the applicable contract and comply with the principles of marriage ethics in the reference process,and clarify the legal application of the agreement and the way of adjudication through the promulgation of guiding cases;Second,clarify the constituent elements of the husband and wife loyalty agreement,the qualified parties are limited to husband and wife,the content fully respects the autonomy of the parties,and the standardization and authenticity of the agreement are improved in the form of writing,notarization,lawyer witness,etc.;Third,it is affirmed that the husband and wife loyalty agreement is within the scope of the court’s case,and the husband and wife’s obligation of loyalty is a legal obligation.The loyalty agreement should be treated as an atypical contract.The lawsuit for agreement has room to be independent of the lawsuit for divorce.Litigation;Fourth,according to the content agreed in the agreement,the validity of the determination shall be distinguished.In principle,the property content shall refer to the contract book of The Civil Code for determination,and the personal content shall be determined in accordance with the basic value concept of The Marriage Law.The provisions of personal nature can play its role in the evidence law;Fifth,reasonably regulate the amount of liquidated damages in the agreement,respect the autonomy of the parties in principle,give full play to the advantages of the mediation mechanism of family disputes,and promote the husband and wife to rebuild a harmonious family relationship based on the principle of taking care of the innocent party.