Research On The Effectiveness Of Spousal Fidelity Agreement Under The Perspective Of The Civil Cod

In the present concept of marriage and family changes,the divorce rate is rising year after year,under the condition of both sides of husband and wife in order to maintain the stability of marriage and choose loyalty agreement,China’s "civil code" marriage and family make up loyalty agreement made no provision for husband and wife,its whether the faithful obligations between husband and wife is the legal obligation stipulated by the academic circle still exist controversy.Loyalty agreement is the embodiment of the duty of loyalty.Since the marriage and Family part of civil Code stipulates that husband and wife should be faithful to each other,the duty of loyalty is a legal duty.Meanwhile,the scope of the duty of loyalty of husband and wife should be interpreted expansively that both physical and emotional fidelity should be maintained.Marital loyalty agreement refers to the agreement reached by both husband and wife before or after marriage,which requires one party who violates the duty of loyalty to carry out certain behaviors during the duration of marital relationship.Inspired by the new rules of contract in civil Code and combined with the theory of contract,it is clear that marital loyalty agreement is an anonymous contract with special subject.In terms of the validity of loyalty agreement,there are mainly four theories in the academic circle:validity theory,invalidity theory,duality theory and natural debt theory.Validity theory advocates that loyalty agreement is the product of the autonomy of the civil subject,and the validity of loyalty agreement should be recognized on the condition that it does not violate the law,public order and good customs and damage the rights and interests of others.The invalidity theory holds that the duty of loyalty is actually a moral norm,which has no substantial remedy.The loyalty agreement violates the legal nature of the right of status and cannot be set freely.The dualistic theory of distinction advocates the effect of content,and discusses the different situations of the effect of personality and property.On the other hand,the natural debt theory does not evaluate the validity of loyalty agreement,neither recognizes the validity of loyalty agreement nor considers the validity of loyalty agreement invalid.This paper is more in favor of the regulation of distinguishing dualism,and according to the idea of distinguishing dualism,the validity of different types of loyalty agreements is determined by content.For personal loyalty agreements,they are usually invalid because they violate the prohibitive provisions of the law and infringe on the rights of others.The property loyalty agreement has strong property property,so long as there is no obvious illegal situation,the law should recognize its validity.For the hybrid loyalty agreement,when the property agreement can be separated from the personal agreement,it is generally considered effective.In order to deal with the problems of different judgments in the same case and confusion of applicable legal basis in practice,the applicable contract part of loyalty agreement is clarified and the provisions of general provisions of civil Code are supplemented to unify the applicable legal rules of loyalty agreement.The effective standard of loyalty agreement can be determined by clarifying the subject of loyalty agreement,expanding the scope of affirmation of expression of will,standardizing the content of loyalty agreement,denying individual justiability and establishing a just system.Discuss the concurrence of loyalty agreement and divorce damages compensation according to the situation and clarify the settlement rules of concurrence.The amount of compensation stipulated in the marital loyalty agreement shall be based on the principle of respect.If the amount of compensation is too high,the compensation amount shall be adjusted according to the adjustment rules of liquidated damages based on the degree of fault,economic income and local living standard.In the case that the innocent party is in a lawful and legitimate investigation purpose,adopts a lawful investigation method,and the investigation content is reasonable,the rights and interests of the innocent party shall be protected first,and the privacy of the third party shall be protected to the maximum by means of closed trial.The court can improve the collection and acceptance of evidence by means of court investigation and evidence collection,guiding the innocent party to collect evidence,relaxing the proof standard and so on,so as to solve the difficult dilemma of obtaining evidence of loyalty agreement.