Legal Thinking Of Loyalty Agreement Between The Husband And Wife

In recent years, the Loyalty Agreement made by the husband and wife triggers many disputes and the existing law did not provide clear specification to resolve the emerging problem. For this reason, there is considerable controversy both in legal science and judicial circle, even some scholars assert that cases arising out of loyalty agreement are typical in representing "same cases but having different judgments" in our country. Some courts in Beijing, Anhui and Guangdong province ever made judgments encouraging couples to sign Loyalty Agreements, while courts in Shanghai, Zhejiang province and some areas Court refuse to file cases at the case-filing divisions of the courts. In the course of drafting the third judicial interpretation, the Supreme Court still could not make a decision whether to admit legitimacy of such an agreement or to insist inadmissibility in the court. Although the Marriage Law has made clearly in principle that the husband and wife should be faithful to each other, legislators did not explain explicitly on concrete terms. As a result, people cannot accurately understand the content when the husband and wife step into divorce procedure. In order to maintain the stability of the marriage and provide redress method for divorce disputes arising out of Loyalty Agreement, it is critical to throw clear attitude on the matter in theory and practice. However, the nature of the Loyalty Agreement has not been confirmed by the Theory Circle and the validation of the agreement has not been united by the courts at all levels. In this case, study of the legal nature of loyalty agreement between the husband and wife become a significant task in promoting marriage harmony and maintaining social stability.This thesis has5chapters. In the first chapter, the author analyzes the meaning and type of loyalty agreement. By dating back the historical elements and making comparative analysis of some countries and areas, such as France, Germany, UK, the US, Switzerland, Japan and China’s Hong Kong and Taiwan, the author demarcates the true meaning and necessity of the Agreement made by the couples.In chapter two, the author studies the origin of the Loyalty Agreement. From the legal point of view, the imperfect of the Marriage Law is the basic element to give birth of the Agreement aiming to perfect the legislation in this field. From the view of social context, the weak moral standard in society nowadays and expectation of stable marriage relationship lead to Loyalty Agreement.In chapter three, on the basis of reviewing the different attitudes towards Agreement and analyzing the legal nature of signing the Agreement which is a civil juristic act in nature, the author expounds that the Agreement reflects value of the law:judicial integrity, autonomy of will, public order, protection of the weakness, etc.In Chapter four, following analysis of validity of the Agreement between husband and wife, the author draw a conclusion that the Loyalty Agreement should be effective and admissible to file a case in the court. Based on this conclusion, the author put forward some key points in examining the validation of the agreement.In chapter five, the author pours out some ideas in standardizing the Agreement from two aspects which are civil and criminal legislation respectively.