Research On The Validity Of Real Right Transference Under The Marital Property Agreement

Both the Marriage Law of the People’s Republic of China("PRC")and the Marriage and Family Part of the Civil Code recognize and protect the property agreement between the husband and wife.Articles 209 and 224 of the PRC Civil Code(Real Right Part)also continue the provisions on creation,alteration,and transfer of the real right of immovable and movable property as provided by Articles9 and 23 of the PRC Civil Code(Real Right Part).However,under the seemingly unchanged legal provisions,what are the differences between the Real Right Part and the Marriage Law Part in terms of the specific effectiveness of the couple’s property agreement? When the husband and wife make a property agreement with reference to the Marriage Law,but fail to register the change of real right in accordance with the basic provisions on the effectiveness of change of real right,disputes over the couple’s property ownership may arise.In the past judicial practice,there have been increasing cases of disputes over the couple’s property agreement with more variety and complexity.Many judicial cases with different rulings on the same case will undoubtedly have a negative impact on the maintenance of the dignity of law and the public order and good morals.In the past,disputes over the couple’s property agreement are mainly rooted in the parties’ different understanding of the specific nature and purpose of the couple’s property agreement.Article 464(2)of the Contracts Part of the Civil Code changes the applicability of the marital relationship agreement in the original contract.Although the applicability of this rule is still vague,and the scope of its application is not defined,it is still regarded as a key basis by scholars to resolve conflicts in the application of various parts of the Civil Code of the People’s Republic of China to the identity agreement.The couple’s property agreement often involves potential obligations in the aspect of identity.If the marital relationship can be combined with contracts,it will not only reserve some space for the parties to the marriage,but also help to maintain a harmonious and loving environment for the marriage and family.In addition,marriage and family should be based on "freedom of contract",restricting the freedom of expression of the spouses’ will.Therefore,the couple’s property agreement should be regarded as a special civil contract and given perfect protection.In addition,for the purpose of improving the applicability of general rules of private law,we suggest making appropriate adjustments to the general rules of private law by referring to the nature of the marital and family relationship.