The Autonomization Of Marital Property Law

The current marriage and family system in China is being impacted by the rapid changes of the times.The decline of marriage rate and the rise of divorce rate indicate that the people have the tendency to escape marriage.The current statutory marital property system is difficult to meet the diversified needs of social groups,which is one of the reasons for the above phenomenon.Therefore,it is imperative to promote the autonomization of marital property law and encourage the parties to arrange marital property relations independently.The second chapter first discusses the status of autonomy of will in the legislative system of marriage law.Since the legislative system of the German Civil Code,the principle of autonomy of will has been the cornerstone of the civil legal system.Taking contract law as an example,it has a superior position compared with other value principles in the civil law system.However,the theory of legal action based on autonomy of will has some inherent conflicts with the family law.In the value system of marriage law,"individualism","collectivism" and "nationalism" constitute its three value dimensions.As the carrier of individualism,autonomy of will plays an important role in the balance and defense of collectivism and nationalism.Its typical reflection is the principle of freedom of marriage which has been widely recognized in marriage law.The opinion that marriage is regarded as a contract has existed since ancient times,which reveals the similarity between marriage and contract,but there are still some characteristics of marriage which are different from contract,such as non-antagonism,generality and insufficient payment.The third chapter discusses the trend of autonomy in the history of marital property law.The marital property law needs to satisfy the hypothesis of "individualization" of the subject under the private property system,and the development of law since modern times has negated the ancient family property model,so the marital property relationship has the need of autonomization,which includes the contents of property ownership,management authority,debt and "non-property" interests.A series of legal changes in modern times have profoundly reflected this historical trend.The historical background of the autonomy of matrimonial property law can be summarized as follows: in ancient society,women's property status was restricted based on the "sanctification" of marriage,but with the "de-sanctification" of marriage by the Enlightenment,women gained equal property status with men.In contemporary society,the increase of women's employment rate,the flourishing of feminist ideology and the deconstruction of traditional family model constitute the realistic motive force for the development of the trend of autonomization.The fourth chapter discusses the trend of autonomization in Chinese marital property law.Before the founding of the People's Republic of China,the legislation of the marital property law has the trend of departure from the legislative source of the ancient traditional legislation and the codification of the continental law system.After the founding of the People's Republic of China,the legislation of marriage law was mainly influenced by the legislation of the Soviet Union.To the autonomy relations of marital property,on the one hand,it provides a broad space,on the other hand,it has the defect of insufficient institutional supply.From a realistic point of view,there is no doubt that it is necessary to develop the marital property law towards autonomization in China.The reasons include: economic development and accumulation of family wealth,high divorce rate,one-child policy,diversification of social groups,complexity of family property income types and difficulty in valuation of "non-property" interests.The fifth chapter discusses the system improvement of the contractual property system in China.The contractual property system and the statutory property system complement each other in value and function The contractual property system can be divided into two types: selective one and original one.China's contractual property system is an original one with high autonomous space,but its overall structure and system supply are inadequate,and its implementation rules need to be improved.The marital property agreement shall be written and notarized.The validity system of marital property agreement has its particularity compared with the contract.The liability for breach of contract in marital property agreement is valid,unless it is contrary to the legal obligations in marriage.The marital property agreement should be registered by the marriage registration organization.The sixth chapter discusses the interpretation of marital debt rules from the perspective of autonomy of will.The core issue of the marital debt rule is about the husband and wife's external liabilities in the name of individuals.Before the promulgation of Judicial Interpretation of Couple's Debt,the path of interpretation theory was not perfect,and judicial interpretation re-established the rule system based on the principle of autonomy of will.The rule of "usage theory" in the Judicial Interpretation of Couple's Debt should not be interpreted in the way of "family interests" but in the way of "presumption of recognition".For couples to avoid debt,creditors can defend their rights by claiming the right of revocation of creditors.For the burden of proof in marital debt disputes,the judge should make flexible allocation and reduce the burden of proof of creditors.When the marital debt rules are enacted in the civil code,the expression of "joint production and operation" should be adjusted,and there is no need to set up special rules for liquidation.The enumeration of the types of marital debts can be re-summarized.