Analysis Of The Effectiveness Of The Agreement On Ownership Of Real Estate In The Divorce Agreement And Dispute Settlement

If the spouses have agreed through the divorce agreement that the real estate which is common property will be owned by one of them,and the creditors of the registered nominee apply to the court for enforcement before the registration of the change of title,can the agreed owner apply to the court to exclude the enforcement with the agreement.There are certain differences in judicial practice.Although there are various views on the nature of the divorce property division agreement in comparative law,such as liquidation theory,alimony theory,and spiritual damage theory,the trial practice tends to interpret it as the liquidation of the property relationship between husband and wife.The marital property law should follow the universal rules of the general property law.Under the property rights change model of "debt formalism",the agreement on the ownership of the property in the divorce agreement only has the effect of the creditor’s rights.In the settlement of disputes of execution objections by outsiders,it is first necessary to determine whether the “substantial rights and interests” of the outsiders exist,and secondly,it is necessary to measure the priority of the substantive rights and interests of the outsiders and the claims of the enforcement creditors.Although the current law has not yet clarified the specific types of civil rights and interests that can exclude enforcement,and in practice the courts do have different grasp of the specific types.However,in comparative law,the so-called third party’s right to exclude execution of the subject matter of execution refers to a situation where the subject matter of execution has one of ownership,pawn,lien,or pledge.Although there are disputes over whether the rights in the debt law can be used as the basis for execution objections,it is generally believed that the right to claim for payment execution cannot be ruled out.The 2015 Objection and Reconsideration Regulation28 additionally recognizes that a buyer of real estate has a claim for a payment-type claim against the executor under a contract of sale that precludes enforcement when certain conditions are met.It can be seen that the creditor’s right is not absolutely impossible to exclude enforcement.Based on the real estate buyer’s "real right expectation" theory created by the Supreme People’s Court,and by analogy with the constituent elements of Article 28 of the "Provisions on Objections and Reconsiderations," it can be considered that the legal status of the owner of the divorce agreement is similar to that of the buyer of real estate.And the registration of the couple’s common property "name does not match" situation by China’s legal spousal property common system and other objective factors,the divorce agreement agreement owner of the fact that the change of property rights may not be imputable,combined with the relevant practices in judicial practice,the requirements of substantive justice should be to meet the specific conditions of Divorce agreement claims preclude enforcement.It is agreed that the liquidation creditor’s rights obtained by the owner based on the divorce real estate division agreement can exclude the enforcement must meet the following conditions.First,the creditor’s rights applied for execution are ordinary monetary credits that are unsecured and have no priority status;Second,the divorce agreement should be signed earlier than the execution of the creditor’s rights and the agreement itself should be legal and valid.Failure to go through the formalities of real estate transfer registration not due to the fault of the agreed ownership and the real estate has already been occupied by the agreed owner before the court seize it;Third,it should be ruled out that the contracted owner and the registered nominee may evade debt performance through a divorce real estate division agreement.