An Empirical Study On Contractual Property System From The Perspective Of Civil Code

In today’s society,under the combined influence of the rising income level of residents,the continuous growth of total household wealth,the high divorce rate and the increasing awareness of women’s independence,the demand of marriageable and married men and women to freely agree on the distribution of property and income before or after marriage is increasing,and contractual property system is gradually to the center of the marital property relationship.In this context,The contractual property system is critical for achieving considerable equality between men and women,as well as the autonomy of the marital property relationship.However,in China’s judicial practice,the legislative function and legislative value of the marital agreed property system to maintain the harmonious and stable marriage and family relations,respect the freedom of marriage parties and guarantee the transaction security of third parties have not been fully played.Therefore,in the post-civil code era,it is particularly necessary to re-examine the legislative construction and judicial application of the contractual property system in China.From the perspective of historical research,The contractual property system in China has survived enormous legislative reforms.In the initial period of the founding of the country,due to the profoundly materially inadequate standard of living of the society,China’s first Marriage Law,the Marriage Law of 1950,did not provide for a system of matrimonial property agreement.1980 Marriage Law,in order to adapt to the social and economic development and changes in family property relations during the transition period,explicitly allowed spouses to agree on the ownership of property in Article 13(2)of the Law,and thus excluded the application of the statutory property system.When the Marriage Law was amended in 2001,the subject matter,scope of property,manner of agreement and legal effects of the agreement of the spouses were stipulated in greater detail,and Article 19 of the Law made the agreement of the spouses into a formalized legal system,reflecting the response of China’s marriage and family law to the changes in social development,and incorporating the core concepts of equality between men and women,autonomy of meaning,good faith and compliance,and safeguarding the safety of transactions into the agreement of the spouses.The 2020 Civil Code has surrendered to marriage and family law,with Article 1065 instantly absorbing Article 19 of the 2001 Marriage Law,virtually flawlessly replicating the former contractual property system with little essential modifications.From the interpretation of the text,history and purpose,the purpose and intention of the regulation of the matrimonial property regime in the Civil Code is to respect the autonomy of the spouses’ property relations,the stability of matrimonial and family relations and the pursuit of safe and fair market transactions.The empirical study before and after the implementation of the Civil Code shows that the judgment of the dispute of the property agreement of the couple is still dominated in the practice of the idea of the property between the couple.This contradiction still exists in the post-civil code era,which therefore continues the dispute between the basis of the claim and the application of the law.Even with the immediate implementation of the Marriage and Family Law and judicial pronouncements of the Civil Code,it has become particularly frustrated.In another context,the external validity of the matrimonial regime is difficult to balance the interests of the parties.Due to the lack of a specific public notice procedure for the matrimonial property regime in China,it is practically difficult for non-debtor spouses to prove that the market counterparts are aware of the matrimonial property agreement between the spouses.Additionally,the practical difficulties of the contractual property system in China are also reflected in the difficulty of determining the genuineness of the expressions of intent,in particular the existence of coercion and fraud between spouses when entering into a matrimonial agreement.In the post-Civil Code era,the resolution of relevant controversies,i.e.the perfection of the legislation and the optimisation of the judicial application of the contractual property system,requires not only the completion of the logical self-consistency of the Civil Code system,i.e.the articulation and coordination between the various sub-chapters of the Civil Code,but also the reasonable realisation of the balance of interests of the parties under the contractual property system.First of all,in the future legislative process,we should follow the trend of the development of the contractual property system,pay attention to the values of respecting the autonomy of intention and maintaining social stability and transaction security,further specify and refine the time of conclusion,change and revocation procedures of the contractual property system,and establish a public register of the contractual property system,so as to substantially guide the parties to the matrimonial relationship on the contractual property system.In addition,the legal property regime of the spouses will,to a certain extent,offset the weakening of the contractual property regime of the spouses in terms of legislative volume.Secondly,in the judicial context of the application of such cases,the current application of the contractual property system should respect the special status of the matrimonial and family codification in the civil law system,fully consider the ethical and emotional basis of the matrimonial property agreement and the compensatory properties of family matters,follow the principle of distinction between internal and external matrimonial property relations,and clarify the effect of the matrimonial property regime in terms of direct changes in property ownership between spouses,and the effect of direct changes in property ownership between spouses in terms of external and market transactions.The use of public confrontation between the couple outside and the reciprocals to the market transaction.Finally,consideration should be given to the expansion of the connotation of the contractual property system to include gifts of real estate between husband and wife,to re-examine the application of the reference to the arbitrary right of revocation in the contractual codification of gifts of real estate between husband and wife,and to optimise the judicial adjudication path of the matrimonial property regime in the expanded state,in order to promote the realisation and application of the value of the contractual property system.After the civil code era,the relevant dispute resolution,namely the legislation of legislation and judicial applicable path optimization,not only to complete the logic of the civil code system,namely the civil code points between cohesion and cooperation,should also be reasonable to realize the agreed property system under the balance of the interests of the parties.First of all,in the future process of legislation,should comply to the development trend of the agreed property system,pay attention to uphold the respect meaning autonomy,maintaining social stability and security value concept of the couple agreed property system conclude time,change and cancellation procedures to be change and refinement,set up agreed property system of the public register,to guide the parties to the choice of the contractual property system and practical application,and to a certain extent,offset the couple legal property system on the weakening of the agreed property system.Second,under the judicial background of class case,the current in the applicable couples contractual property system,should respect the marriage and family of the special status in the civil law system,give full consideration to the marital property agreement behavior ethical emotion and family compensation attribute,follow the principle of marital property relationship inside and outside,clear couples agreed property system of property ownership changes directly between the couple,the effectiveness of the external couple and market counterpart between the public antagonism.Finally,should consider the connotation of the contractual property system expansion explanation,including couples real estate gift,re-examine couples real estate gift to contract arbitrary revocation reference applicable,and optimize the expansion of the agreed property system of judicial referee path,to promote the value of the contractual property system implementation and applicable.