On The Validity Of Real Right Change Of Divorce Property Partition Agreement

By introducing the "Tang Succession Dispute" case and reviewing the case and analyzing the judgment documents of the court of second instance,this paper summarizes the focus of the dispute in this case,the "divorce property division agreement" and the existing legal problems.Combining the gap and disputes in the theory and practice of this issue,on the basis of the existing theory and judicial practice,it divides different types of divorce property.The protocol is analyzed.In the further literature reading,the author finds that Chinese scholars seldom discuss the nature;validity of divorce property division agreement and the change of property rights caused by it,and often comment on it in the discussion of marital property system.In addition,as the most common form of marital property agreement in China,divorce property division agreement has a variety of judgments in judicial cases.So I think it is necessary to sort out the problem systematically from theory and judicial practice.This paper mainly discusses the validity of divorce property division agreement and the change of property rights caused by it.Firstly,divorce property division agreement belongs to civil legal acts,and its entry into force,invalidity and revocation must follow the relevant provisions of the General Principles of Civil Law.The divorce property division agreement should satisfy the three requirements of the general civil legal act,and the form is not one of them.The divorce property division agreement concluded in the form of oral agreement is lawful and effective in the case that the husband and wife do not dispute and actually carry out.After entering into force,the divorce property division agreement may be changed or revoked on the basis of the agreement between the husband and wife,and the same procedure as agreed upon shall be adopted.Secondly,although the interpretation of real right change and the interpretation of idealistic real right change mode,which are not based on legal acts,can be justified to some extent,they are both breakthroughs in real right law and do not conform to the principle of legal real right.The author prefers to explain the change of property rights based on legal acts that the effect of the change of property rights in the Marriage Law should be applied in the marital relationship,while the provisions of the Property Law should be applied outside the marital relationship.Publicity is the effective element of the agreement.Finally,taking the divorce property division agreement as the breakthrough point,combining with the key issues of the full text,this paper puts forward some thoughts on the legislation of marital property agreement system.