| This dissertation studies the effect of property division agreement for divorce purpose,by taking reference of existing research results and conducting case analysis.The first chapter establishes the boundaries of divorce property division agreement as its content.This chapter,as first,defines divorce agreement,which is the foundation concept for divorce property division agreement,by reveling one characteristic of divorce agreement as formal act – it procedurally requires to make divorce registration in marriage registration authority or get the mediation agreement issued by people's court;as well as the other characteristic of divorce agreement as composites actions in content level – it only takes effective after marriage registration authority issuing divorce certificate if going through administrative procedure,or after both parties signed mediation agreement if going through litigation procedure,and the effective of divorce is the prerequisite for the following subordinate acts like property division or child custody & etc.This chapter further defines divorce property division agreement,by comparing which with similar concepts as divorce agreement before litigation,property division agreement within marriage,and contractual marital property system,in order to clarify its difference with ordinary civil contract or other property agreements signed between husband and wife,and indicate the unique attributes of divorce property division agreement include but not limited to i)the subject is husband and wife,who shall have a legitimate marriage;ii)the content refers to division of common propertyof husband and wife,because of the necessity to divide the co-owned property when the foundation for co-ownership no longer exist caused by divorce;iii)divorce property division agreement is regulated by property laws,but it shall become effective,as subordinate act of divorce,when divorce takes effect.The second chapter focuses on the conditions of a valid divorce property division agreement.First of all,the general conditions for a valid divorce property division agreement are introduced: qualified subject as husband and wife,genuine declaration of will,content of agreement itself legal,from normal legal act perspective.Then,the special condition be the effectiveness of divorce,from subordinate act of divorce perspective.Lastly,the needs to establish a separate divorce invalid and revocable system are explored.The flaw of declaration of will is in particular elaborated as core topic.Hypocritical divorce,intendment-hold divorce,or fraud divorce,duress divorce are not treated as void or revocable in current legal practice,in other words the general terms to regulate the flaw of declaration of will in General Provisions of Civil Law do not apply to divorce.Such influences from divorce to property division agreement is further analyzed,and it is pointed that the legal effect of subordinate act shall be judged as followed on the condition of valid divorce,and the declaration of will in property division shall be separated considered,by applying property acts to the general terms in General Provisions of Civil Law if flawed,in particular to take the interests of good-faith counterparty and third party into account.The third chapter focuses on the practical concerns when implementing divorce property division agreement.The first concern discussed is,whether one party is entitled to claim the divorce property change be a gift and further revoke the gift in accordance with Paragraph 1Article 186 of Contract Law if the husband and wife have agreed on the ownership of specific real estate when divorce but the real estate registration change has not completed yet? In this regard,the detailed legal effects are discussed respectively on two scenarios: one refers to property to be owned by either husband or wife,the other refers to be owned by child of the couples:One party's waiver its part or all property share in divorce property division agreement is not gift,and such property transfer agreement is irrevocable,because i)subordinate act of divorce would be separated improperly from the special maritalrelations of husband and wife,without considering the basic essence of divorce as legal acts closely connected to identification if treating the nature of divorce property division agreement as gift;ii)the division made by the spouses when divorce is based on marital and family relationship,not purely from value perspective,and the divorce agreement covers property,debts,child custody and the similar,therefore it is impractical to separately judge whether the alignment on specific movable property or real estate comply to the free-of-charge standard of gift contract;iii)the registered divorce agreement shall “bind” to husband and wife;iv)the alignment on property ownership shall be at least regarded as irrevocable gift,for estoppel purpose.To give one or both of spouses' property to child in divorce property division agreement is,one party's consent to the other or both parties' consent to each other to pay for third party,which is not gift,and such property transfer agreement is irrevocable.However,whether Article 64 of Contract Law could be confirmed as third party benefit contract is disputable,which needs to be further clarified in future legislation.The second concern discussed is,whether the registered divorce property division agreement gets the legal effect to change property rights,if the husband and wife have agreed on the ownership of specific real estate when divorce but the real estate registration change has not completed,in the meanwhile the real estate was enforced because of the registered owner not paying its debts after divorce? If no,whether the concerning party's right to claim to implement divorce property division agreement sufficient enough to exclude the third party's enforcement on the basis of winning verdict?By analyzing the relevant court practices in High Courts all over China and courts in Shanghai and summarizing the logic behind these trials,it is found,at first,that court would favor divorce property division agreement excluding the enforcement by third party based on winning verdict,on the least condition of,i)no malicious collaboration existed,by which court would mainly verify the sequence of marriage termination and basic dispute happened,meaning the personal debts after divorce would be confirmed rather than common debts by husband and wife if terminating marriage first and then basic dispute happened;ii)the basic dispute is about ordinary money claims,and no mortgage on the real estate to be enforced.Through analysis on three typical cases respectively,it is further pointed out the three different explanation methods by court: “Zang Xuxia enforcement objectionreview case” mixed divorce property division agreement with contractual marital property system regulated by Article 19 of Marriage Law;while “Fu Jinhua v.s.Lv Qiubai & Liu Jianfeng outsider's enforcement objection lawsuit case” sentenced divorce property division agreement does not get legal effects to change property rights if without real estate change registration.However,the logic behind “Zhong Yongyu v.s Wang Guang,Ling Rongda outsider's enforcement objection dispute case” by Supreme Court is recommended: in such lawsuit of outsider's enforcement objection,divorce property division agreement entitles one party the right to claim to implement shall be checked whether sufficient enough to exclude the third party's enforcement,even if divorce property division agreement does not get the legal effects to change property rights,in particular for two elements abstracted as followed shall be considered,i)the third party does not enjoy additional trust benefits because of the belonging of the real estate to be enforced when the basic dispute happened,and divorce property division agreement itself does not change the responsibility scope of the person to be enforced,so there is no need to protect the so-called transaction safety and stability in this regard,nor will it cause any side effects to third party;ii)the real estate has the function to support the life of outsider and its children,so there is priority in ethics perspective,and it would be more important to ensure the stable family relationship if balancing the value of law to protect. |
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