A Study On The Residency Agreement In Divorce Agreement

There are a lot of disputes in judicial practice about the right of residence stipulated in the divorce agreement.As a right with dual properties of property and personal attributes,the right of residence agreed in the divorce agreement not only plays the role of divorce property distribution in the sense of property law,but also plays the role of divorce economic assistance in the sense of marriage law.The right itself is complex.The provisions on the right of residence in the Civil Code are relatively thin,some provisions are vacant,and the retroactive force of the new regulations is also uncertain,which cannot provide a clear guidance for the judiciary,and the application of the provisions is in a dilemma.This paper summarizes a large number of practical cases.On the basis of the analysis of the special legal attributes of the right of residence stipulated in the divorce agreement,it solves the application dilemma of the right of residence regulations,and clarifies the general rules of adjudication of the cases of the right of residence stipulated in the divorce agreement,as well as the trial thinking of the special problems.In addition to the introduction and conclusion,this paper is divided into three parts and five chapters.The first part is the first chapter of this paper,that is,the question.In this part,the author first lists the typical cases in the practice of the right of residence agreed in the divorce agreement to show the focus of contradictions between the subjects of the right and the right.At the same time,the author also lists the judicial disputes related to the right of residence agreed in the divorce agreement to show the different judicial opinions of the court on some issues when applying the law.There is a practical need to clarify the rules of adjudication of cases of residence rights agreed in the divorce agreement.The second part is the second chapter of this paper,which is the analysis of the problem.This part analyzes the theoretical basis of the right of residence agreed in the divorce agreement from the perspective of system development,system value,nature of rights and characteristics of rights,and clarifies the special legal attributes of rights.Before the property attribute of residence right was determined,the right of residence agreed in the divorce agreement was defined as the role of economic assistance for divorce by the Family Law.After the nature of the real right of residence is confirmed,the right of residence agreed in the divorce agreement has the attribute of divorce property distribution.Because it is of great significance in both property law and family law,when determining the specific judicial adjudication rules of the right of residence agreed in the divorce agreement,the rights and obligations of both parties to the divorce agreement are determined according to the adjudication rules of the general right of residence,which can neither play its institutional value in the family law nor give consideration to the solution of its unique problems.Therefore,the analysis of the theoretical basis of the right of residence agreed in the divorce agreement is the basis and premise for clarifying the rules of adjudication.The third part is the third,fourth and fifth chapters of this paper,that is,the solution of the problem.This part solves the legal application of the right of residence agreed in the divorce agreement in three aspects:establishment,legal effect and elimination.When determining the effectiveness of the establishment of the right of residence agreed in the divorce agreement,it is necessary to clarify the differences between the divorce agreement and the general contract in terms of the purpose,subject and legal effect of the conclusion,and appropriately relax the requirements for the establishment of the elements to ensure that the judgment conforms to the agreement of the parties.In terms of the legal effect of the right,it is mainly necessary to solve the identification of some special subjects and objects in the practice of the right of residence stipulated in the divorce agreement.In terms of the elimination of rights,in addition to the legal effect of eliminating the right of residence agreed in the divorce agreement,in addition to the general elimination of the right of residence,it should also be reasonable to judge whether some special causes under the divorce situation can produce the effect of the elimination of rights.Clarifying the general rules of adjudication of the cases of residence rights agreed in the divorce agreement,as well as the trial ideas of specific issues,can provide more clear guidance for judicial practice and ensure judicial fairness.