Research On Provisions Of Contract Book Of Civil Code To Be Applied To Personal Relationship Agreements Mutatis Mutandis

Paragraph 2 of article 464 of the Civil Code stipulates that an agreement on establishing a marriage,adoption,guardianship,or the like personal relationships shall be governed by the provisions of laws providing for such personal relationships;in the absence of such provisions,the provisions of this Book may be applied mutatis mutandis according to the nature of such an agreement.This provision broke the barrier between Marriage and Family Book,Succession Book and Contract Book.However,as for the approaches that provisions of Contract Book are applied mutatis mutandis to the personal relationships agreements,which need to be conceived systematically.Not all personal relationships agreements belong to civil juristic acts,only those that are equipped with behavior intent and effect intent can be classified to juristic acts,others should be regarded as friendship agreements and regulated by mores and ethics.According to contents of personal relationships agreements,they are able to be divided into three types:those only lead to establishment,change and elimination of personal relationships ought to be considered as complete personal relationships agreements,those lead to property relationship changing on the basis of establishment,existence,change and elimination of personal relationships ought to be considered as property agreements based on personal relationship,and those lead to both above juristic effects ought to be considered as mixed personal and property relationships agreements.Same to property contract,personal relationships agreements are also contracts formed on the basis of exchange justice,which justify that provisions of Contract Book are applied mutatis mutandis to personal relationships agreements.In addition,mutatis mutandis application is different from analogical application and legal interpretation,it need to find out the similar provisions and compare the similarities between case characteristic and regulations,only under the circumstances that these meet the demand of substantive similarity.the provisions of Contract Books can be applied mutatis mutandis.In the process of provisions are applied mutatis mutandis to complete personal relationships agreements,it contains three steps:review of juristic act,seeking of provisions to be applied and judgement of substantive similarity,whereas the process of provisions of Contract Books to be applied mutatis mutandis to property agreements based on personal relationship include four steps:review of juristic act,review of personal relationships validness.seeking of provisions to be applied and judgement of substantive similarity.As for mixed personal and property relationships agreements,because they are sets of complete personal relationships agreements and property agreements based on personal relationship,they can be divided two parts and apply the approaches of complete personal relationships agreements and property agreements based on personal relationship respectively.