Marital Property System deficiencies and countermeasures20630.doc

Marital Property System deficiencies and countermeasuresAbstract: Marital Property System is an important marital property system, which enriches and completes the establishment of property relations of husband and wife, but the system itself there are still some drawbacks and understand the differences, need to be further improved from the legislative and institutional up. Of such a system following the writer's talk about a few self-recognition.         I. Marital Property System Overview         In China, the husband and wife during the subsistence of the marriage there were two kinds of property relations, that the statutory marital property relations and property relations of husband and wife agreed. Marital Property System is based on the Marital Property relations is that the husband and wife to contract, agreement, determine pre-marriage and marriage and property ownership, management, possession, use, income, disposal and liquidation of obligations, the liquidation of dissolution of marriage, etc. aspects of legal systems. The legal effect of the agreed property system should be higher than the legal property system, only the parties did not make a matrimonial property agreement, or agreement is not made clear, is invalid, the law only applies to analysis of husband and wife legal property system capacity.         Second, the contents of Marital Property System         The revised 'Marriage' provisions, husband and wife may agree to the marriage relationship continues to exist, as well as pre-marital property acquired during the separate ownership of property, common to all or part of the respective parties, some in common.         1. Property, the contents of the agreement. Marital Property System property, has a very broad agreement, the two sides both agreed on the marital property, but also can be pre-marital property agreement, either on the agreement has been made of the property, but also can be possible to achieve agreement of the property. In the form of property types are quite diverse, including real estate, vehicles, precious metals, currencies, stocks, bonds, copyrights, trademarks, patents, and even claims, and so on.         2. Property relations of the agreement. Husband and wife can be part of the property agreement can also be carried out on all the property agreement, may agree to jointly owned, you can also agreed for their respective all, or part of the respective parties, some in common.         3. Involve the principles of law. First, the principle of freedom. Husband and wife agreed the content of property, no person shall forced to contract, forcing the other to accept the contents of their proposed agreement, matrimonial property agreement must be the husband and wife both their true wishes. Second, the principle of fairness. Prohibition of matrimonial property agreement signed by the party of the machine, occupied the other rights, denial of the other party the right to absolve themselves of obligations, breach of the principle of fairness. In our present circumstances, the couple agreed the content property of the application of the principle of fairness, should focus on the protection of legitimate rights and interests of women, not to enter into discrimination against women, against women's property rights and interests of the property agreement. The third is the principle of legality. Husband and wife agreed the contents of the property must comply with laws and regulations, respect for public order and good morals of society. Third, an effective system of Marital Property Elements         Marital or quasi-marital property, the parties entered into agreement to produce legal effects, with general civil legal act must have set up an effective element.         1. Both parties have full civil capacity, and in line with the requirements of the Marriage Law the provisions of the age between the two sides. Between husband and wife entered into an agreement regarding property is a civil legal act, no civil capacity or limit the capacity for civil conduct are not entitled to agreement. At the same time require a person to one of the men, no earlier than 22 years of age, women shall not be earlier than 20 years of age.         2. The parties that the true meaning. That means the parties in the true meaning of freedom of the will and can confirm their meaning under the premise that the legal effect of his heart will be consistent with the external performance of the state. Meaning that the real circumstances of the husband and wife entered into an agreement regarding property in order to produce legal effects on the parties, fraud, coercion, position of vulnerability such acts seriously undermined the autonomy principle, can produce no legal effect on the marital property agreement.         3. Agreed the content must be legitimate, not against the law and social public interests. Husband and wife agreed to the property shall not circumvent the old-age child-care and other legal obligations, must not harm national, collective or a third person's lawful rights and interests shall not violate laws and regulations, not inconsistent with public interests, or else he would become null and void or voidable legal acts .         Fourth, the effectiveness of the system of matrimonial property agreement         1. Innenverhältnis.         Matrimonial property agreement Innenverhältnis mainly refers to the agreement is binding on the parties to the marriage, that agreement enters into force, between husband and wife and their heirs in the property agreement between the effectiveness of property rights, marriage is governed by the parties bound by this agreement. If change or cancellation must be approved by marriage, the consent of both parties, a party can not express their own meaning to make changes or cancel.         2.'s External validity.         Matrimonial property contract refers to the external effect of a husband and wife marriage agreement property, whether the effectiveness against third parties. According to China's' Marriage 'of article 19, paragraph 3,' a husband and wife during the marriage, property acquired all the property of their respective agreement, the husband or the wife of liabilities incurred by the external party, the third knew that the agreement in order to husband or the Wife of either spouse settlement '. Where a third person agreed upon prior knowledge of the property with the husband and wife against the third person effect; the other hand, the third did not know that the husband and wife property agreement, marriage, husband and wife agreed by the parties shall not be against a third party. The key lies in whether the person knew that the third convention. Reposted elsewhere in the paper for free download http:/                 5, his wife agreed property system and deficiencies in the existing differences         1. Marital property regime on the legal status of the point of view there are differences.         China's 'Marriage' provisions of the husband and wife legal property system and the Marital Property System in the two forms of matrimonial property system. Most experts agree that legal property system of marital property system is the basic form of husband and wife, husband and wife agreed upon property system is just husband and wife legal property system to add, this relationship is not equal. However, some experts believe Marital Property legal property system and the system of husband and wife have equal legal status, are the basic system of matrimonial property system. I tend to the latter point of view. Because, first in the legislation, the new 'marriage' 19th of the Marital Property System clearly established with the 17th Article 18th Article of the marital property system in parallel with the statutory marital property regime. Second, the law applies, the agreement property of the system has excluded the effect of the legal property system, as long as marital property agreement and entered into force once it is established, it is no longer applicable statutory marital property regime. These two points can be seen only from the two kinds of property ownership between husband and wife should have equal status.         2. With regard to the agreed system of Marital Property type differences and countermeasures.         Many scholars believe that the new 'marriage' first paragraph of Article XIX of the matrimonial property agreement is a statement of the contents of legislation restricting choice legislation by mode, the Law provided for in Article 3 kinds of marital property regime that is in general a common system, property system, respectively, limited to the common system of choice for marriage, the parties agreed, the parties can only choose one of them, matrimonial property agreement to be valid, otherwise, the property agreement is invalid, the parties still applicable statutory matrimonial property regime. Edited by Yang Da-wen, 'Family Law' on hold this view.         There are many scholars believe that the contents of the matrimonial property agreement is a freestyle model legislation, the parties may be a result of marriage and specificity of the individual and the agreement of their property, the contents of free choice, as long as no law, without prejudice to the public interest, public order and good morals , then the agreement should be recognized as valid. Wang in his book 'Marriage and Family Law' hold this view.         I rather agree with the latter view. Since allowing parties outside of the statutory property regime may agree to their property relations, but restrictions on several types of property regime, which is contrary to the agreed system of property values. And these three typical types of property regime does not exhaust the parties marital property, the manner and type of agreement, so in a matrimonial property agreement, and without violating the basic principles of marriage law, should allow the parties to the autonomy on the basis of rational choice in the form of self-interest in order to meet the parties marital property agreement requirements.         Property system for the agreed understanding of the differences, if the legislation does not make a clearly defined, in practice, operations will inevitably will bring great trouble.         3. Marital property regime only in written form, lacked the necessary notary, publicity procedures.         If the separate property of husband and wife agreed to implement the system, the third agreement between husband and wife knew that, then the property of their agreement into force; and if the third person did not know his property had been made between husband and wife had agreed to sign with one of them contract led to the dispute, then the third person is bona fide third persons, of property between husband and wife agreed that he did not take effect right. According to the relevant judicial interpretation, is the 'third knew that the agreement, one spouse bears the burden of proof'. This shows that the expression of the law for the protection of bona fide third parties. But this in a weak position to repay the outstanding debt has to shoulder the responsibility of that party is not fair. Therefore, in this regard Marital Property System of the legislation is flawed. How to solve? I think we should set up a special registration department of the matrimonial property agreement and regulations, both husband and wife agreed to the registration of property required to the property sector agreed to register and publicity. When one of the spouses and third-person transactions, the third person may own property to the registration department to see if they agree to register this way, can protect the security of a third party transactions, but also to safeguard the legitimate rights and interests of both husband and wife. In addition, the registration agreement for the property settlement agreement entered into force can also be a matter of time.         To better improve the system of matrimonial property agreement, the parties will meet the needs of the broad masses of marriage, the parties agreed to protect the legitimate rights and interests and to maintain a civil transaction security and ultimately a better marriage, so that the family is more stable, so that the community is more diverse.                    References:         1 Yang Da-Wen. Family Law. Beijing: Law Press, 2004.         2 Wang. Marriage and family law. Beijing: Law Press, 2003.         3 Chiang Kai-shek months. Couples the rights and obligations. Law Press, 2001. Reposted elsewhere in the paper for free download http:/