The Research Of Contractual Regime About Marital Property Of China

In the time of Feudal society,the public possession ownership of families was enforced within families,family property rights were controlled exclusively by Father.Spouse's contractual property system did not exist at all.With the development of social productive forces and the changes of ideas,Spouse's contractual property system was accepted by most countries which experienced a development process of growing out of nothing to perfection.The system can amend and supplement the disadvantages of legal property system,which is not only helpful for guaranteeing the autonomy and the legal private property of marriage parties,but also helpful for reducing family disputes,stabilizing family relationship,improving efficiency of trials of judicial organs and their judicial authority.Throughout the present situation of legislation in our country,the spouse's contractual property system was changed and perfected by 2001 Marriage Law,which was advanced and positive at the time,but it was too brief in terms of quantity or contents of legal provisions.Ten years later,China's personal property of couples has been greatly improved;types of property were diversiform;the relation of property of couples has gotten more complex;the awareness of individual independence and the protection of legal rights are gradually enhanced;agreements on property before and after marriage were increased so much than before,as a result,current Spouse's contractual property system as the superstructure cannot adapt to the developments and demands of times.The academic circle and the judicial circle also have a lot of controversy over the system,which was especially reflected in the chaos between the legal characterization and application of Spouse's contractual property system in judicial practice and bad for the establishment of legal authority and the construction of a country under the rule of law.the perfection of Spouse's contractual property system has important theoretical value and practical significance in our country.At present,the compilation of our civil code is in full swing,it is the choice of history and reality that the marriage and family law should be codified as a part of civil code.Legislators should seize this opportunity improving the legislative mode and content of Spouse's contractual property system in relative group.The author seeks to discuss basic theories of contractual property system,compare and sort out the some relevant foreign legislation and the relevant proposals of Chinese scholars for the draft of civil code.Aside from the introduction and conclusion,this paper is divided into the following five parts:The first part is to elaborate the basic theories of Spouse's contractual property system.This part mainly talks about the connotation,characteristics,nature and legal application and effect of the Spouse's contractual property system in order to provide theoretical basis for further study.The second part is the situation of legislation and judicial practice of Spouse's contractual property system.First of all,elaboration of the history and current legislative situation of Spouse's contractual property system will be given.Secondly,150 cases selected from the database of Beijing University within recent five years will be analyzed to investigate the application of Spouse's contractual property system in current judicial practice.The third part is the analysis and comparison of foreign legislation.The legislation of Germany,France,Japan and Macao will be investigated and compared from different aspects,such as legislative system,the subject,the content and type of the agreement,the scope of the object,the time and the changes of the agreement,the form and the effect of the agreement,in order to find useful example from foreign legislation and broaden the research perspective of China's relevant legislation in current times with accelerated global integration.The fourth part is the analysis and comparison of the draft legislation of Spouse's contractual property system recommended by scholars.At present,there are three types of the Civil Code Proposal published by Prof.Liang Huixing,Prof.Xu Guodong and Prof.Wang Liming respectively.The author will compare those three versions from legislative style,legal term,subject,the content and types,the scope,the time and the changes,the forms and the effect of the agreement,and sum up their similarities and differences in order to learn lessons from them.The fifth part is the suggestions for the complement of Spouse's contractual property system.First of all,this part will clarify the necessity and concrete significance of the complement of Spouse's contractual property system.Then,put forward legislative proposals on the basis of lessons drawn from the legislative experience of Germany,France,Japan,Macao and China,and from the legislative proposals of the aforementioned professors.