| In the field of marriage and family,with the increasing awareness of individual rights,it is normal for family members to safeguard their rights and interests through agreements,thus reaching various agreements related to identity relations.However,whether these agreements can be regarded as identity relationship agreements and brought into the scope of legal adjustment,and whether the property laws and regulations can be applied has always been controversial.The promulgation of Article 464,paragraph 2,of the Contract Part of the Civil Code marks that the identity relationship agreement has been formally included in the adjustment of the contract edition,but the substantive standard of the identity relationship agreement and the specific method of referring to the application of the contract edition have not been clearly defined in this clause,which leads to different judicial decisions.Therefore,on the basis of defining the identity relationship agreement,this paper analyzes the judicial status and dilemma of referring to the application of contract part,and then clearly defines the substantive standards of identity relationship agreement and the methods of referring to the application of contract compilation in combination with legislative technology,normative intent and value concept,with a view to providing clear guidance for judicial practice.The whole paper is divided into four parts:The first part is the definition of the identity relationship agreement.First of all,the substantive criteria for judging the connotation and extension of the identity relationship agreement are clarified,and the identity relationship agreement must have the general attribute of the civil legal act,and have the identity and law suitability in the content,so as to distinguish from the identity friendship behavior and the property contract signed by the subject with the identity relationship.Secondly,this paper explains the legal characteristics of identity relationship agreement: identity,ethics and formality.Finally,the types of identity relationship agreements are divided.It can be divided into legal identity relationship agreement and constructive identity relationship agreement to effectively deal with the dispute of new identity relationship agreement.According to the standard of property attribute,it can be divided into pure identity relationship agreement and identity property agreement to provide typed analysis for reference to applicable contract.The second part is the current situation and dilemma of the identity relationship agreement with reference to the applicable contract.By combing the judicial cases,it is concluded that there are three kinds of dilemmas in referring to the application of the contract in the identity relationship agreement: first,it denies the feasibility of referring to the application of the contract in the identity relationship agreement,and thinks that the rationality of property instruments will have an impact on family ethics;Second,the application of the law is not uniform,and the phenomenon of different judgments in the same case is serious;Third,the reference application is not standardized,which is manifested in the unreasonable reference application,the mixed use of reference application and direct application,and the chaotic steps of reference application.The third part is the normative guidance of the identity relationship agreement with reference to the applicable contract.First of all,it is clear that the "nature" in the Article464,paragraph 2,of the Civil Code includes identity and property.The nature of identity relationship agreement is the basis of its reference application.Reference application refers to "authorized analogy application" and legal basis reference,which should be distinguished from direct application and analogy application.Secondly,clarify the sequence of legal application of identity relationship agreement.When applying by reference,the legal norms that should be cited shall be determined according to the sequence of marriage and family part,general part and contract part to ensure the unity of legal application.Finally,the similarity in the application of norms by reference is demonstrated.Not only judge the similarity in fact,but also explore the legislative purpose and normative intention,evaluate the value,test the overall legal effect of reference application,and ensure that the similarity judgment is accurate and the applicable results are appropriate.The fourth part is the specific application of the identity relationship agreement with reference to the contract.In view of the controversial focus of typical identity relationship agreements in judicial decisions,this paper discusses the reference application of marriage and adoption agreements in pure identity relationship agreements,as well as the nature and effectiveness of engagement,marital loyalty agreement,divorce agreement and marital property giving clauses in identity property agreements,and discusses whether and how the above agreements can refer to the relevant norms of applicable contracts according to different situations,so as to respond to judicial disputes and provide clear guidance for judicial practice. |
