A Study On The Effect Of The Agreement On Transferring Real Estate Between Husband And Wife

It is inappropriate for the judicial interpretation to stipulate that the gift contract rules should be applied to the agreement on transferring real estate between husband and wife,because the only thing gift contract rules care is whether real estate registration or notarization are made.In terms of scope of consideration,it ignores factors such as whether the husband and wife have entered into a marriage and what the marital status is,and in terms of value,it ignores the strong family law value and ethical concepts behind the agreement on transferring real estate between husband and wife,and is too rigid in dispute resolution to ensure justice in individual cases,so it is hardly justified.The theory of giving based on marriage is derived from the German theory.It is not advisable to adopt it,because of in view of the differences between the Chinese law and the German law in the legislative mode of the marital agreement property system,the gap between the rules of the change of circumstances in the Chinese law and the legal behavior basic obstacle rules in the German law,the equalization function of the joint ownership of married income in our country’s law in dispute resolution,and the tendency not to adopt the theory of giving based on marriage in judicial practice.The most significant advantage of the theory of marital property contract is that:based on this theory,through the interpretation of our country’s statutory joint ownership of income during marriage,the disputes over real estate agreement between husband and wife can be settled at one time when the marriage breaks down,and the interest reconciliation function of divorce division rules can be fully utilized.Such a mechanism for resolving disputes over real estate agreement between husband and wife at one time through the rules of divorce and division can completely internalize the settlement of disputes over real estate agreement between husband and wife within the field of marriage and family without resorting to the rules of change of circumstances in general law.In this way,factors related to marriage and family such as the investment status of the real estate,the duration of the marriage,the investment and contribution of the recipient to the marriage,child support,etc.can be fully considered.With regard to the disputes within the theory of marital property system contract,the theory of "effect of creditor’s rights" and "theory of effect of real rights" that give agreement to the property between husband and wife,the author believes that the theory of "effect of creditor’s rights" should be adopted.The reason is that the "obligation effect theory" adheres to the principle of registration requirements for changes in real property rights externally,and internally excludes the arbitrarily revoked right granted to people under the gift rules.impact,it is the best of both worlds.Except for the introduction and conclusion,the general structure of this thesis is as follows:In the first chapter,through empirical analysis,it is found that due to gaps in the normative level and disputes in theoretical viewpoints,the court has different views on the nature and effectiveness of the real estate agreement between husband and wife and the relief of the interests of the parties.The second chapter examines the relevant theoretical viewpoints of the real estate agreement between husband and wife.Firstly,a general introduction to the academic theories about the real estate agreement between husband and wife;secondly,to sort out the theoretical basis,logical approach,advantages and disadvantages of various theories;finally,refute the other theories except the theory of marital property contract,the focus of the refutation is mainly on the theory of gift and the theory of giving conditional on marriage.The third chapter clarifies that the nature of the real estate agreement between husband and wife should be the theory of marital property contract.And then refutes the criticisms of the theory of marital property contract in the academic circle one by one and explains the three advantages of the theory of marital property contract.The fourth chapter demonstrates that the effect of the real estate agreement between husband and wife should be the effect of creditor’s right.A brief introduction to the disputes between the theory of "effect of creditor’s rights" and "theory of effect of real rights" withinthe theory of marital property contract,because "the theory of effect of real rights" is logically difficult to be self-consistent and blatantly deviates from the publicity requirements for changes in real property rights,it is believed that the "creditor’s right effect theory" that can achieve both the protection of the interests of the parties and the maintenance of transaction security should be adopted.