Divorce Estate Division Agreement Studies That Exclude Issues Of Executive Effectiveness

With divorce rates high,disputes over the division of marital assets are on the rise.As for the real estate division agreement made by the husband and wife at the time of divorce,whether there are exceptions to the general rules of real right changes in the real right compilation,the Marriage and Family Compilation of the Civil Code has not been clearly explained,and there are also disputes in the academic circle and judicial practice.The discussion about the nature of the agreement can be divided into four viewpoints: the theory of attached status act,the theory of marital property agreement,the theory of conditional legal act and the theory of divorce property liquidation.Combining with the analysis of judicial practice,the fourth view is more reasonable,and the agreement can not directly produce the legal effect of real right change.However,when the property involved in the divorce is applied for execution by others,whether the right holder in the divorce property division agreement can apply for the exclusion of execution by an outsider,there are two viewpoints in academic circles and judicial practice.Combined with the analysis of judicial practice,the legal principles of excluding execution effect of divorce real estate division agreement under certain conditions are as follows: First of all,the divorce real estate division agreement stipulates that the legal status of the right holder is similar to that of the real estate buyer,which can be regarded as the claim right for specific real estate and has expected benefits,and thus has the priority in the settlement order when measured with the creditor’s right of the applicant.Secondly,the divorce real estate division agreement stipulates that the right holder has the right to change registration request for specific real estate,and the right holder has the expected interest for the real estate,so the creditor’s right can be regarded as the entity right that can exclude the enforcement.In view of the current disputes about the validity of the exclusion enforcement of divorce real estate division agreement,to avoid the situation of different judgments in the same case,the specific criteria for the exclusion enforcement of this agreement should be improved: The rights of the person applying for execution are monetary claims,the agreed obligee’s claims are generated before the execution of the obligee’s claims,the obligee has not gone through the alteration registration without any fault of the agreed obligee,and the agreed obligee has obtained possession before the seizure.In addition,in order to clarify the adjudication path of such cases and improve judicial efficiency,the Supreme People’s Court issued judicial interpretations or guiding cases.On the one hand,it should help local courts clarify the connotation of relevant laws and applicable rules,so as to avoid different judgments in the same case due to differences in legal understanding.On the other hand,it is necessary to let local courts clarify the scope and standards of the review of such cases,and pay attention to the measurement of the actual interests of the parties while giving full play to the pre-litigation screening function of the above constituent elements.