Analysis On Marriage By Contract

In the long course of human history, marriage is the most important part in social life and is closely related to everyone. Marriage is the foundation of the family and the family is the cell of society. As marriage plays an important role in people's daily life, stability and development of society, it becomes social relation adjusted by law. After the establishment of the People's Republic of China, the first true sense law is of on the legislative of marriage and family law, and has been amended and improved. The research on marriage law is also a part of civil law. Although the paper is the law on marriage, it is not to study certain system in marriage law, but to explore the legal nature of marital relationship. Understanding the legal nature of marital relationship contributes to constructing models of marriage lawmaking, which provides theoretical and analytical methods in the specific system. After referring to the relevant literature and researching, the author thinks that the nature of marriage is a contract. This opinion is more harmonious with China's current economic and social development. Furthermore, marriage contract is more conducive to the formulation of lawmaking of marriage. The author reviews regulations of current marriage law and puts forward some proposals on some focus problems and the future prospects of marriage legislation.This paper is divided into three parts.Chapter one introduces a variety of theories on the nature of marriage. There are four main doctrines. The author draws a conclusion that the legal nature of marriage is a contract after analysis and comparison. This paper also demonstrated that the essence of marriage is a contract in four aspects. Firstly, comparing with other views, marriage contract is the most in line with the social reality. Secondly, after analyzing civil contractual theories, marriage has contractual values, which pursues freedom, equality and the idea of justice, what's more, at the same time, meets the marriage contract form. Thirdly, from the historical perspective, marital relation depends on the level of economic development, in a market economy, freedom, equality and justice seeps into marital relation, the conclusion that the essence of marriage is a contract can be truly established. Finally, the author deems that the behavior in marriage and contract is chosen by a rational person after considering costs and profits, whose purpose is to achieve maximum benefits. In addition, the main function of contractual law and marriage law is to guarantee concerned benefits, maintain social stability and increase social wealth. Therefore, this theory builds up a modern marital relationship, guarantees the independent right of marriage the party concerned, increases social wealth, raises social productivity, sets up harmony, civilization of marital relationship and promotes social harmony.Chapter two is from the point of view of the marriage contract to analyze our country's marriage law. Firstly the author reviews two marriage laws since the establishment of PRC, two of which played an proper role and conformed to the situation of society at that time, however, for some reason, marriage law rarely reflected and the essence of a marriage contract can not be recognized. Secondly the author discourses relevant systems about marriage law respectively, after analyzing pros and cons of provisions of marriage law, the author points out its deficiencies and merits. This law attaches more importance to ethicality and contract of marriage because amendments and sequent judicial interpretations of this marriage law conform to the situation of society, in addition, the process of drawing up is democratic, what's more, it emphasizes the protection for the social vulnerable groups. As a result, this law shows the development of lawmaking, Nevertheless, the system of this law paid more attention to morals, on the contrary, the essence of marital contract can't be highly valued, which requires continuous amendment and perfection.Chapter three the author analyzes some focus problems with the method of marriage contract On the effectiveness of the system of marriage, the author discusses how to regulate common law marriage, cohabitation, invalid and revocable marriage and engagement .I think that while these regulations publish violations, they should emphasize the salvation for the innocent parties and the social vulnerable groups. As we know, law gives prominence to self-governing of private law for not damaging public and private interest, it can't interfere too much. Concerned relationship of spouse, I suppose matrimonial regime should be refined thoroughly. Finally, I support damage system of divorce, but it requires perfection.Finally, the author reiterates that marriage depends on the development of the productive forces, and can be counterproductive to the development of productive forces. In the current situation, the nature of marriage is a contract is in line with the development of productive forces. At the same time, the author hopes that this theory can be explicitly formulated in the future lawmaking, which is beneficial to stability and harmony of marriage, thereby promoting productivity and economic development.