| The property contract between husband and wife is the concrete embodiment of the concept of autonomy of private law and freedom of contract in the field of marriage and family,and is the inevitable logic of marriage contract theory.The property contract system of husband and wife is of great significance to meet the needs of different families and promote the construction of harmonious family relations.In comparative law,the two legal systems have legislative provisions on marital property contract system in marriage and family law,and some classic cases have been formed in judicial practice.However,in the system of private interest,contract and family autonomy are unbalanced,which involves the balance of individual interests and family interests.At present,with the rapid development of economy,the increase of wealth and the increase of transnational marriage,the property contract system of husband and wife needs to be improved.At the same time,China's civil code was formally passed,which shows the spirit of the times and scientific system,which makes the marital property contract system get a new interpretation space.Therefore,it is necessary to study it from the perspective of comparative law.The connotation and nature of marital property contract is the basis of systematic study.The connotation of marital property contract is very rich.The legislation and theory of the two legal systems have different provisions and understandings.The civil law system generally believes that the purpose of the marital property contract is to change the legal property system of husband and wife.The common law system generally thinks that the marital property contract is a kind of marriage agreement,which contains more extensive contents.On the basis of a comprehensive comparison of the two and their relationship,the concept of marital property contract is concluded,that is,the contract to determine the ownership of premarital property,the property relationship between husband and wife during the existence of marriage relationship,and the division of property between husband and wife during divorce.The nature of marital property contract is identity property contract.The conclusion of the contract can not hinder the realization of the functions of supporting family,safeguarding the interests of marriage community and protecting the interests of the weak in marriage.After the property contract between husband and wife is legalized,a series of systems are formed,that is,husband and wife property contract system.Both the two legal systems accept the theory of marriage contract and stipulate the system of marital property contract in legislation.However,the marriage relationship is very complex.Its identity,partnership and ethics restrict the contractual nature.In addition,the value orientation of the matrimonial property contract system of the two legal systems is to encourage the conclusion of contracts,pay attention to the substantive equality between the sexes,balance personal interests and family interests,protect the interests of the weak and transaction security.In view of this,two legal systems have made different provisions on its effective requirements rules,effectiveness rules and applicable rules of law when constructing the marital property contract system,which is different from the general commercial contract.There are similarities and differences between the two legal systems in the design of the effective elements of the marital property contract system.In terms of formal requirements,both the two legal systems require that the marital property contract conform to special formal requirements.The civil law system usually requires notarization,while the common law system requires lawyers to participate in or draft.Although the specific methods adopted by the two legal systems are different,their functions are equivalent,which aims to ensure that each party understands the legal consequences of the contract and that the signing of the contract is voluntary.In terms of substantive requirements,the two legal systems both stipulate the substantive elements of the marital property contract.First,the contracting subject must have the corresponding civil capacity and specific status.The other is that the declaration of intention must be true.The civil law system generally ensures the authenticity of the declaration of intention through notarization,while the common law system generally prevents the use of unfair bargaining strategies to conclude contracts or ensures that the parties understand the legal consequences of contracts through the participation of lawyers.Third,the content of the contract must be legal.Both legal systems allow the parties to agree on the ownership,management,disposition and division of the property.Both require that the contents of the contract shall not violate the general rights and obligations rules of the husband and wife,and shall not be exempted from the maintenance obligations between the husband and wife and damage the custody right of the children.They both think that the marriage obligations of the personal nature are unenforceable and refuse to execute the husband and wife "Loyalty clause" in property contract.After the marital property contract comes into effect,the content of the contract is to adjust the property relationship between husband and wife,which has internal and external effects.As far as the internal effect is concerned,the change of property right caused by the property contract between husband and wife does not need to be delivered or registered to produce the effect of real right change,whether adopting the mode of consensual real right change or directly applying the provisions of marriage and family law.As far as the external effect is concerned,the couple's property contract must be publicized before it can fight against the third party.At the same time,it is based on the limited cognitive ability of the two legal systems.The civil law courts usually review according to the principle of public order and good customs,while the courts of common law usually examine whether the results of the execution of contracts show fairness.Although there are differences in the examination methods of the two legal systems,there are some similarities in the examination standards: both regard the marital property contract as an independent aspect of the marital property relationship;both consider whether the situation changes when signing the contract;both think that the contract can cancel or modify the contract when the contract exempts compensation for the adverse interests caused by marriage or when the performance of the contract leads to extreme poverty of one party.In addition,the two legal systems allow the parties to change or cancel the marital property contract,but in order to prevent the parties from damaging the interests of the marriage parties or the third party by changing or canceling the marital property contract,it is usually required to meet certain conditions and procedures.The system of marital property contract has been recognized by the two legal systems in substantive law,and the conflict law also allows the parties to choose the applicable law of marital property contract according to the principle of autonomy of will.However,due to the fact that the marital property contract has the identity attribute,the two legal systems adopt the principle of Limited will autonomy,that is,the parties are only allowed to choose the applicable law within the time and scope prescribed by the law in accordance with the law.If the parties do not agree to choose the applicable law,in view of the property relationship between husband and wife has the identity attribute,the two legal systems usually require the application of personal law.However,there are some disputes in the choice of personal law connection point between the two legal systems.The civil law system takes nationality as the connecting point,and the common law system takes the marital residence as the connecting point.There are also theoretical disputes between the two legal systems on the principle of alternation and immutability,the theory of division and the theory of unification.However,it also shows the trend of convergence,such as the joint point of personal law is the common residence and common nationality,and the personal law is applicable to the property contract between husband and wife.In addition,the two legal systems take into account the particularity of the real estate.For the real estate involved in the marital property contract,either the party autonomy is explicitly excluded and only the real estate location law is allowed to apply,or the party autonomy is allowed to choose the real estate location law.Through a comparative study of the marital property contract system of the two legal systems,the following main cognition is drawn: if a country has strict provisions on the formal requirements of the marital property contract,then the requirements for the effectiveness review are relatively relaxed,and vice versa.Civil law attaches importance to form,while Anglo American law attaches importance to effectiveness review.In recent years,the two legal systems have shown a trend of integration.The continental law system has changed from form oriented to substance oriented,while the common law system has changed from emphasizing substance to emphasizing form.However,both of them have the same purpose,trying to find a balance between freedom of contract and justice of contract,certainty and predictability of law,and pay more attention to the pursuit of contract justice.This trend is the same as the legislative value orientation of marital property contract system in China's civil code,that is,taking into account family interests and personal interests.In addition,China has surpassed the legislative concept,paying more attention to the function and value of the family,and paying more attention to family harmony,which is in line with the reality of marriage and family in China.Based on this,we should take into account the actual situation in the field of marriage and family and inherit excellent family culture,and selectively learn from foreign mature legislation and complete effectiveness review system,so as to realize the modernization of China's marital property contract system.One is to fully consider the realization of the functions of supporting the family,safeguarding the interests of the marriage community and protecting the interests of the weak carried by the legal system of husband and wife property,defining the property contract of husband and wife as identity property contract and further restricting the freedom of contract of the parties.The second is to follow the logic system of civil code and apply the legal behavior system to regulate the effective elements of marital property contract.Third,combined with the reality of marriage and family in our country,we should draw lessons from the complete effectiveness examination system of foreign countries,and apply the principle of public order and good customs to regulate the effectiveness of marital property contract.Fourth,we should pay attention to the independence and self consistency of marriage and family in the civil code in addition to the general provisions of the civil code,so as to prevent the direct application of the general property law rules to the marital property relations.Fifth,according to the actual situation of our family,we should introduce the form of notarization and add the right to know the property of husband and wife.Sixth,in line with the substantive law,under the background of fully considering the identity and property attribute of the marital property contract and maintaining the transaction security,we should further improve the principle of Limited will autonomy and personal law in the law of application of law,and complete the provisions of the applicable law between husband and wife on the effectiveness of the third party. |
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