On The Removal Of The "Integrity" Theory Of Divorce Agreement

The "integrity" of the divorce agreement is a concept created in trial practice.It was originally designed to resolve a large number of disputes about the "gift clause" in the divorce agreement that appeared in reality.However,due to the lack of accurate definition of the "integrity" of the divorce agreement in trial practice and academic theory,this concept is not clear in helping to resolve various specific disputes related to the divorce agreement.Through the empirical observation of the effectiveness of divorce agreements,combined with the theory of identity behavior,the divorce agreement is divided into divorce and divorce liquidation agreements.The divorce liquidation agreement is an accompanying identity behavior,and the validity status is attached to the divorce.The meaning of divorce itself is "floating",so it can be withdrawn arbitrarily before the divorce registration application is accepted,resulting in the corresponding ineffectiveness of the divorce liquidation agreement.It can be known that the divorce agreement has a certain "integrity" phenomenon,which is essentially caused by the legislative arrangement of using the divorce agreement in writing as a special procedural obstacle to registering a divorce.This kind of procedural obstacles allows the parties to the marriage relationship to consider the divorce and the terms of the divorce liquidation agreement when deciding whether to divorce,so that other terms and the divorce form a certain "transaction".Through the method of interest measurement,compared with the general gift contract,the donee in the divorce agreement actually considers the property consequences before deciding to divorce,and it is necessary to increase the protection of the non-core interests of the freedom of marriage;the donor passes the divorce intention The floating nature of the divorce liquidation agreement has achieved the first control over the binding force of the divorce liquidation agreement.After the dissolution of the marriage,the extent to which the "interests of uncompensated behaviors not sloppy" are worthy of protection has decreased;the exercise of the right of arbitrary revocation will increase the disputes between the parties and lead to The benefits of the negotiated divorce system cannot be realized,so it is finally concluded that the donor can exercise the right of arbitrary revocation,and the provisions of Article 70 of the Civil Code Marriage and Family Interpretation I shall apply to the law.The concept of "integrity" does not provide a good theoretical explanation of why the "gift clause" cannot be arbitrarily revoked,nor is it helpful to the application of law in other disputes in divorce agreements.Divorce and child support agreements have the independent value of freedom of marriage and the maximization of children’s interests.It is natural to apply the identity law alone;the property division agreement cannot be understood as "in principle,the contract cannot be partially terminated" but has "integrity".It is precisely because the act of divorce is irreversible,and from the perspective of reducing disputes and improving efficiency,the property division agreement can be completely cancelled or partially revoked.In cases where external creditors exercise the creditor’s right of revocation,the court’s confusion is also a problem caused by "integrity".When judging whether a certain clause constitutes a fraudulent act,one can learn from the "equivalence" standard of Japanese law in dealing with similar issues,but this is also based on the denial of "integrity." Exploring the origin of the "integrity" of the divorce agreement and whether it can actually play a role in various specific disputes can be discovered.This is a concept that cannot stand scrutiny.The core of the problem behind "integrity"-whether the protection of freedom of marriage extends to a certain property interest may be really worth discussing.