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On the historical development of marital property system

With the development of social economy and the increase of personal income gap, the simple legal property system can no longer meet the practical needs of adjusting the relationship between husband and wife's property rights and obligations. We must improve the marital property agreement system in our country, and make clear the form, type, establishment and effect of marital property agreement, so as to reduce marital property disputes and maintain social stability.

[Keywords:] husband and wife, property, agreement

Compared with the legal property system, the marital property agreement system refers to the agreement reached by the husband and wife (or the two parties who intend to get married) on the ownership, management, use, disposal, income and debt settlement, property liquidation and division of the property when the marriage relationship is dissolved, which takes precedence over the legal marital property system [1]. It is not only the main basis for regulating the property relationship between husband and wife, but also a problem involving transaction safety. When adjusting the property relationship between husband and wife, most contemporary countries adopt both the legal property system and the agreed property system (such as France, Japan, Germany, Switzerland, etc.). ), and only a few countries adopt a single legal marital property system instead of an agreed property system (such as the former Soviet Union, Romania, Poland, etc.). With the development of our society, people's ideas are constantly updated, and some new situations and problems have appeared in the property relationship between husband and wife. The marital property agreement system is gradually recognized by people.

First, China's marital property agreement system has a long history, which can be traced back to the 1930s. Article 1004 of Section 4 of Book IV of the Civil Code of the Republic of China stipulates: "Before marriage or after marriage, husband and wife can choose one of the agreed property systems stipulated in this law as their marital property system by contract", and Article 1007 stipulates: "The conclusion, modification or dissolution of the marital property system contract. [2] This should be regarded as the legislation that formally stipulated marital property in the history of our country.

The Marriage Law of the People's Republic of China (hereinafter referred to as the Marriage Law) promulgated by 1950 does not clearly stipulate the marital property agreement. However, the report of the Legal Affairs Committee of the Central People's Government on the drafting process and reasons of the Marriage Law of the People's Republic of China pointed out that the Marriage Law "can solve all kinds of family property problems through equality, freedom and voluntary agreement between husband and wife, which is another concrete manifestation that both husband and wife enjoy equal ownership and disposal rights of family property". [3] The explanation of family property agreement here embodies the following principles: ① Both husband and wife are allowed to make an agreement on property issues; The property agreement between husband and wife must follow the principles of freedom, voluntariness and equality; ③ The object of marital property agreement is family property; (4) The content of the marital property agreement involves ownership and disposal rights. Since the report made by the Legal Affairs Committee of the Central People's Government is a legislative interpretation and has legal effect, it can be said that China's 1950 Marriage Law allows the implementation of marital property agreement in essence. However, due to the limitation of social conditions and the scarcity of personal property in real life, the legislative spirit of marital property agreement has not been implemented in real life.

Thirty years after the founding of People's Republic of China (PRC), China's economy has developed rapidly, people's concept of marriage and family has changed to a certain extent, and the life of married families has become increasingly complicated. 1980 in order to meet the needs of the development of social, political, economic and family relations, the Marriage Law stipulates in Article 13 1 that "the property acquired during the marriage relationship shall be owned by both husband and wife, unless otherwise agreed". Since then, the marital property agreement in China has been formally established as a necessary supplement to the legal property system. However, the law does not specifically regulate the marital property agreement system, and it is difficult to grasp how to adopt the marital property agreement system in reality.

In order to adapt to the increasingly complex marital property relationship and meet the requirements of different social classes for the marital property system, 200 1 Marriage Law further developed the marital property system in China, continued to allow the parties to the marriage to implement the agreed property system, and made great modifications and supplements to the marital property system, clearly defining a series of issues such as the agreed scope, agreed conditions, agreed content, agreed form, agreed effect and agreed debt settlement. Such as giving the agreed property system the same legal status as the legal property system; The provisions on the property of husband and wife are made by authorization norms, which make it clear that the parties to a marriage can make an agreement on the property of husband and wife through contracts; When there is no agreement between the two parties or the agreement is invalid, the legal property system shall apply.

Second, the types of marital property agreement system in China

200 1 Article 19 of the Marriage Law stipulates: "Husband and wife may agree that the property acquired during the marriage relationship and the property before marriage shall be owned by themselves, all or part of it shall be owned by * * *, and part of it shall be owned by * * *." Accordingly, there are three kinds of agreed property systems defined in the Marriage Law of 200 1: general * * * system, limited * * * system (or partial * * * * system) and separate property system [4].

1, generally * * * uses the property system.

The general * * * same property system means that the husband and wife agree that all the property before and after marriage belongs to the husband and wife, except the unique property. Husband and wife's property, whether movable or immovable, belongs to husband and wife, and both husband and wife enjoy property ownership equally. Article 18 of the 200 1 Marriage Law stipulates that in any of the following circumstances, it is the property of one of the spouses: (1), the pre-marital property of one of the spouses; (two) medical expenses, living allowance for the disabled and other expenses obtained by one party due to physical injury; (3) Property determined to belong only to the husband or wife in the will or gift contract; (4) Daily necessities of one party; (five) other property that should be owned by one party. Husband and wife have equal rights to dispose of all property. This paper holds that, except for items (2) and (4), it is not appropriate to stipulate that husband and wife are jointly owned, and the other three items can stipulate that husband and wife are jointly owned. Because (2) if the property is agreed to be shared by husband and wife, once divorced in the future, another convenience can be shared, which will affect the later life of the injured party. (4) The property is not agreed as the expression and necessity of husband and wife.

2. Limited * * * and property system

Limited * * * property system refers to the property system in which both parties agree that the property within a certain range belongs to both husband and wife, and the property outside the range belongs to both husband and wife. The difference between this system and the legal system after marriage lies in the different scope of property. In the legal marriage income system, the scope of * * * is strictly limited to the property obtained after marriage, and the property obtained after marriage is generally with * * *, except for the circumstances stipulated in Article 18 of the Marriage Law. However, under the limited marital income system, the scope of * * * property is completely determined by both parties through consultation. The parties may agree that the property before marriage belongs to both parties, or they may agree that it belongs to both parties.

The termination of the property restriction system includes the agreement between husband and wife and the death of one of them for some reason. Through consultation between husband and wife, during the marriage relationship, both parties to the marriage can cancel the limited property system and adopt other marital property systems. After the husband and wife voluntarily terminate the limited property system, all the property of * * * * shall be divided and liquidated, including all the creditor's rights and debts of * * * *. On the other hand, the death of one of the spouses for some reason also leads to the termination of the limited marital property system according to law. At this time, the spouse of the decedent should negotiate with other legal heirs of the decedent to divide and liquidate the decedent's estate.

3. Independent property system

Property-sharing system refers to the marital property system in which both husband and wife's pre-marital property and post-marital property belong to each other, and each of them exercises the rights of management, use, disposal and income. This began with the "marriage without husband's rights" in the late Roman law, aiming at protecting the independent personality of both husband and wife, and is the product of "husband and wife individualism" [5]. This system does not exclude that one of the spouses transfers part or all of their personal property to the other in the form of contract, nor does it exclude that both parties own part of the same property. The property system of husband and wife is based on the individualism of husband and wife, which fully affirms that husband and wife are different and independent people. In particular, the system fully recognizes married women's independent personality and property rights, which is of positive significance to opposing male chauvinism.

The termination of personal property system includes the death of one spouse, divorce of husband and wife and the change of marital property system through consultation between husband and wife. Because under the separate property system, the rights and obligations of husband and wife's property are separated, and there is generally no division and liquidation of the same property. However, if the ownership of a property is unknown, it should be presumed that the property is the same property, and it is natural to divide it. At the same time, if a spouse has made special contributions to the marriage and family, according to the provisions of Article 40 of the Marriage Law, the spouse who has made special contributions has the right to claim compensation. However, this claim for compensation can only be exercised when the separate property system is terminated.

Third, the establishment of marital property agreement in China.

For a couple or a party who intends to get married, a property agreement must have the effective elements for the establishment of a general civil juristic act in order to be legally effective.

1. Both husband and wife have full capacity for civil conduct.

The parties to a marital property agreement must have corresponding capacity for civil conduct. Because the legal age of marriage in China is much higher than the age of majority, and the Law on the Protection of Minors in People's Republic of China (PRC) prohibits the parents or other guardians of minors from concluding marriage contracts for minors, no matter whether the parties conclude marital property agreements before or after marriage, they will not involve minors. As long as there is no mental disorder, the parties concerned are of course adults with full capacity for civil conduct according to law when concluding a marital property contract. The "husband and wife" here should be understood as the married man and woman. As long as the man and the woman are husband and wife, the property agreement signed before or after marriage should be regarded as the agreement between husband and wife on property. If it is limited to marriage, it is obviously contrary to the legislative will. Because one of the purposes of establishing and perfecting the status of the agreement system is to fully respect the autonomy of personal property, reflect the autonomy of the parties, and clarify the ownership of property at the time of marriage can reduce disputes. If the property agreement before marriage registration is invalid, it will only be valid after marriage registration, then once the marriage registration, one of the men and women refuses to agree, is it not only the legal system? How can the party with more property safeguard its legitimate rights and interests? Therefore, the "husband and wife" in the subject of marital property agreement refers to the husband and wife when dealing with the property, not the husband and wife when agreeing on the property. 2. The intention of the parties is true.

The true expression of will refers to the state that the inner will of the parties is consistent with the external performance on the premise that the will is free and the legal effect can be confirmed. The marital property agreement concluded under the condition that the will is true can have legal effect on the parties. If the internal will of the parties is not compatible with the external performance, the will is not true. Fraud, coercion, taking advantage of others' danger and other improper behaviors interfere with the parties' expression of will, seriously undermine the principle of autonomy of will and greatly harm the interests of the parties. Therefore, the expression of will caused by these acts is against the law and cannot produce the legal effect of marital property agreement.

3. Agency does not apply to the parties' own behavior.

Husband and wife are the main body of marital property relationship, the holder of property rights and the undertaker of property obligations. The conclusion of marital property agreement is a legal act closely related to the identity of the parties, and the parties must perform it in person. The agreement made by anyone else instead of the parties to the marriage relationship is invalid. At the same time, because the contract is related to the life or major personal property interests of both parties, it involves the obligation of both husband and wife to support each other, the obligation to raise and educate minor children and the obligation to support their elders. Therefore, only the parties themselves can properly conclude a contract with their socio-economic status, and no one else can gain insight into the true feelings of one spouse.

4, does not violate the legal and social interests.

In order to obtain legal effect, a legal act must conform to the legal provisions, otherwise it can only become invalid or revocable. The "law" here includes not only civil legal norms, but also legal norms of other departments. For example, Article 58 of the General Principles of the Civil Law of People's Republic of China (PRC) stipulates that the following civil acts are invalid: ① acts committed by persons without civil capacity; (2) A person with limited capacity for civil conduct cannot independently implement it according to law; (3) One party makes the other party act against its true meaning by means of fraud, coercion or taking advantage of others' danger; (4) Malicious collusion that harms the interests of the state, the collective or a third party; (5) Covering up illegal purposes in a legal form. An invalid civil act is invalid from the beginning of the act.

Fourth, the form of marital property agreement.

The property agreement between husband and wife means that both parties express their meaning in a certain way, so the agreed behavior form has obvious legal significance. 200 1 Marriage Law stipulates that the property agreement between husband and wife should be in written form. Where there is no agreement or the agreement is unclear, the provisions of Articles 17 and 18 of this Law shall apply. It can be seen that the marital property agreement system in China adopts written form, rather than oral form and other forms.

If the marital property agreement is in written form, it has met the legal requirements, but it is not clearly stipulated whether it must go through the publicity procedure. From the perspective of Chinese and foreign legislation, there are two forms of marital property agreement:

First, both husband and wife need to conclude a written contract, which is binding on both husband and wife. Second, the marital property agreement is concluded in written form, and it takes legal effect after a certain publicity procedure. This paper holds that the parties to a marriage conclude a marital property agreement in writing, and the parties themselves choose whether to go through the publicity procedure. Of course, using notarization as a publicity procedure is more conducive to stabilizing this contractual relationship. Because according to the provisions of the marriage law, the conditions for the marital property agreement to take effect on the third party can only be opposed to the third party if the third party knows the agreement; Otherwise, the marital property agreement will only take effect within the marriage and will not take effect for the third party. It can be seen that the third party has no obligation to find out in advance whether the husband and wife have a property contract. Therefore, the publicity procedure is meaningless to the third party and will not have any impact on the independent economic exchanges between husband and wife and the third party. In addition, according to the traditional concept of our country, husband and wife as a family property should not be divided between you and me. It is not easy to stipulate that the property belongs to both parties, which is a breakthrough to the traditional concept. If they are allowed to notarize again, at present, most people can't do it. Therefore, it is not necessary to regard notarization as a necessary procedure for marital property agreement at present.

Five, the validity of the marital property agreement

1, the domestic effect of marital property agreement

Once the marital property agreement comes into effect, the real right effect occurs between husband and wife and their heirs, and both parties to the marriage are bound by this agreement. Both husband and wife must exercise their rights and perform their obligations in accordance with the agreement, and the distribution of marital property interests must also be carried out in accordance with the effective agreement [6]. Article 8 of the Contract Law of People's Republic of China (PRC) stipulates that a legally established contract is legally binding on the parties, and the parties shall perform their obligations in accordance with the agreement, and may not change or terminate the contract without authorization. Contracts established according to law are protected by law. Any spouse who violates the property agreement shall bear the corresponding liability for breach of contract. Both husband and wife must strictly fulfill the property agreement and may not change or terminate it at will. If it is really necessary to change or cancel, it must be agreed by both husband and wife, and it is also in written form, and the original agreement must be notarized by the notary office before it can be changed or cancelled.

2. The external effect of marital property agreement

Paragraph 3 of Article 19 of the Marriage Law stipulates: "The husband and wife agree that the property acquired during the marriage relationship shall be owned by each other, and if a third party knows this agreement, it shall be paid off with the property owned by the husband and wife." Therefore, in the marital property agreement, if any third person knows the marital property agreement in advance, it has the effect of resisting the third person; On the other hand, the third party does not know that there is an agreement on the property of husband and wife, and the husband and wife contract of the parties to the marriage shall not be against the third party. That is, neither husband nor wife can bear the debt, because the debt is not owed by themselves, and the husband and wife have an agreement. As long as the spouse who has not borrowed money can't prove that the third person who is a creditor knows the property agreement, both husband and wife can pay off the debt to the third person with property and personal property first. After paying off, the spouse who is not in debt will recover from the other party.

As for the circumstances under which a third party can be deemed to "know" the agreement, the law does not stipulate. However, from the perspective of protecting the innocent third party first, the burden of proof of "knowing" is reversed to the parties agreed by the husband and wife, not the third party. If there is conclusive evidence to prove that the third party knows the marital property agreement, for example, it is indicated in the creditor's rights and debts document that the debtor and the husband and wife implement the agreement system, and the agreement content is indicated, the effectiveness of the marital property agreement extends to the third party, and the third party cannot ask the other party with the marital property agreement to bear the debts that the debtor cannot repay, but can only ask the debtor to pay off with personal property.

To sum up, although the types, forms, establishment and effectiveness of the agreed marital property system in China have been determined by legislation, there are still shortcomings. Because of this, there are also many controversies in the legal field. In the future, by summing up previous legislative experience and drawing lessons from foreign legislative achievements, this system will be improved day by day and play an important role in avoiding marital property disputes and stabilizing social order. The marital property agreement system refers to the system that the husband and wife (or the parties who intend to get married) agree on the ownership, management, use, disposal, income and debt settlement of the property before marriage and the liquidation of the property when the marriage relationship is dissolved through the contract, excluding the application of the legal marital property system. It is not only the main basis for regulating the property relationship between husband and wife, but also a problem involving transaction safety. When adjusting the property relationship between husband and wife, most contemporary countries adopt both the legal property system and the agreed property system (such as France, Japan, Germany, Switzerland, etc.). ), and only a few countries adopt a single legal marital property system instead of an agreed property system (such as the former Soviet Union, Romania, Poland, etc.). With the development of our society, people's ideas are constantly updated, and some new situations and problems have appeared in the property relationship between husband and wife. The marital property agreement system is gradually recognized by people.

First, the historical evolution of China's marital property agreement system

The marital property agreement system in China has a long history, which can be traced back to the 1930s. Article 1004 of Section 4 of Book IV of the Civil Code of the Republic of China stipulates: "Before marriage or after marriage, husband and wife can choose one of the agreed property systems stipulated in this law as their marital property system by contract", and Article 1007 stipulates: "The conclusion, modification or dissolution of the marital property system contract. This should be regarded as a formal legislation of marital property agreement in the history of China.

The Marriage Law of the People's Republic of China (hereinafter referred to as the Marriage Law) promulgated by 1950 does not clearly stipulate the marital property agreement. However, the report of the Legal Affairs Committee of the Central People's Government on the drafting process and reasons of the Marriage Law of the People's Republic of China pointed out that the Marriage Law "can solve all kinds of family property problems through equality, freedom and voluntary agreement between husband and wife, which is another concrete manifestation that both husband and wife enjoy equal ownership and disposal rights of family property". The family property agreement here should include: ① allowing husband and wife to make an agreement on property issues; The property agreement between husband and wife must follow the principles of freedom, voluntariness and equality; ③ The object of marital property agreement is family property; ④ The content of marital property agreement involves ownership and management right. Because the legislative interpretation made by the Legal Committee of the Central People's Government has legal effect, it can be said that China's 1950 Marriage Law allows the implementation of marital property agreement in essence. However, due to the limitation of social conditions and the scarcity of personal property in real life, it is difficult to embody the legislative spirit of marital property agreement.

Since the founding of New China 30 years ago, China's economy has developed rapidly, people's concept of marriage and family has changed to a certain extent, and marriage and family life has become increasingly complicated. 1980 in order to meet the needs of the development of social, political, economic and family relations, the Marriage Law stipulates in Article 13 1 that "the property acquired during the marriage relationship shall be owned by both husband and wife, unless otherwise agreed". Since then, the marital property agreement in China has been formally established as a necessary supplement to the legal property system. However, the law does not specifically regulate the marital property agreement system, and it is difficult to grasp how to adopt the marital property agreement system in reality.

Second, the types of marital property agreement system in China

Article 19 of 200 1 Marriage Law stipulates: "Husband and wife may agree that the property acquired during the marriage relationship and the property before marriage shall be owned by themselves, * * * jointly or partially, and * * * jointly. The agreement shall be in writing. If there is no agreement or the agreement is unclear, the provisions of Articles 17 and 18 shall apply. " Accordingly, there are three kinds of agreed property systems defined in the Marriage Law of 200 1: general * * same system, limited * * * same system (or partial * * * same system) and separate property system.

1, generally * * * uses the property system.

General * * * with the property system, refers to the husband and wife before and after all the property belongs to the husband and wife * * * with * * *, except for special property. Regardless of whether the husband and wife have their own property before and after marriage, whether it is movable or immovable, it belongs to the husband and wife, and both husband and wife enjoy the property ownership equally, except for the property otherwise specially stipulated by law. Article 18 of 200 1 Marriage Law stipulates that one of the following circumstances shall be the property of one of the spouses: (1) the pre-marital property of one of the spouses; (two) medical expenses, living allowance for the disabled and other expenses obtained by one party due to physical injury; (3) Property determined to belong only to the husband or wife in the will or gift contract; (4), special daily necessities; 5], other property should belong to one party. Husband and wife have equal rights to dispose of all property.

Generally, the same property is terminated due to the death of one spouse, the divorce of both spouses and the agreement of both spouses to adopt other marital property systems permitted by law. No matter what causes the termination of the general * * * system, the * * * property must be divided and liquidated. Pay special attention to the following two situations: (1) When the same property system is terminated, if the parties have debts, they should be identified and dealt with together, and the handling of debts cannot be ignored; (2) Personal property belonging to one spouse according to law is personal property under any property system. Under the general system of * * *, the property listed in Article 18 of 200 1 Marriage Law is still the personal property of husband and wife and is not included in the scope of * * *. Husband and wife adopt other property systems, which are still the personal property of one spouse according to law.

2. Limited * * * and property system

Limited * * * property system refers to the property system in which both parties agree that the property within a certain range belongs to both husband and wife, and the property outside the range belongs to both husband and wife. The difference between this system and the * * * system obtained after marriage lies in the different scope of * * * property. Under the same system, the scope of legal marital income is strictly limited to the property obtained after marriage, and the property before marriage belongs to individuals according to law. Under the limited system of * * *, the scope of property owned by * * * is completely determined by both parties through consultation. The parties may agree that the property before marriage belongs to both parties, or that part of the property after marriage belongs to * * *.

The termination of the property restriction system includes the agreement between husband and wife and the death of one of them for some reason. Through consultation between husband and wife, during the marriage relationship, both parties to the marriage can cancel the limited property system and adopt other marital property systems. After the husband and wife voluntarily terminate the limited property system, all the property of * * * * shall be divided and liquidated, including all the creditor's rights and debts of * * * *. On the other hand, the death of one of the spouses for some reason also leads to the termination of the limited marital property system according to law. At this time, the spouse of the decedent shall negotiate with other legal heirs of the decedent to divide and liquidate the decedent's estate.

3. Independent property system

Property-sharing system refers to the marital property system in which both husband and wife's pre-marital property and post-marital property belong to each other, and each of them exercises the rights of management, use, disposal and income. This began with the "marriage without husband's rights" in the late Roman law, aiming at protecting the independent personality of both husband and wife, and is the product of "husband and wife individualism". This system does not exclude that one of the spouses transfers part or all of their personal property to the other in the form of contract, nor does it exclude that both parties own part of the same property. The property system of husband and wife is based on the individualism of husband and wife, which fully affirms that husband and wife are different and independent people. In particular, the system fully recognizes married women's independent personality and property rights, which is of positive significance to opposing male chauvinism.

Third, the establishment of marital property agreement in China.

For a couple or a party who intends to get married, a property agreement must have the effective elements for the establishment of a general civil juristic act in order to be legally effective.

1. Both parties have full capacity for civil conduct.

2. The intention of the parties is true.

3. Agency does not apply to the parties' own behavior.

Husband and wife are the main body of marital property relationship, the holder of property rights and the undertaker of property obligations. The conclusion of marital property agreement is a legal act closely related to the identity of the parties, and the parties must perform it in person. The agreement made by anyone else instead of the parties to the marriage relationship is invalid. At the same time, because the contract is related to the life or major personal property interests of both parties, the obligation of mutual support between husband and wife, the obligation of raising and educating minor children and the obligation of supporting elders, only the parties themselves can properly conclude a contract suitable for their social and economic status. For example, the marital property agreement between He Mou and his wife Li Mou of Anhui Branch of China Mobile Company must and can only be signed by He Mou and Li Mou, and no one else can gain insight into the true feelings of He Mou and Li Mou.

4, does not violate the legal and social interests.

Fourth, the form of marital property agreement.

First, both husband and wife need to conclude a written contract which is binding on both husband and wife. "Husband and wife" here should be understood as both men and women who have married. As long as this man and a woman get married, whether they sign a property agreement before or after marriage, it should be regarded as an agreement between husband and wife on property. If it is limited to marriage, it is obviously contrary to the legislative will. Because, one of the purposes of establishing and perfecting the status of the agreement system is to fully respect the autonomy of personal property, embody the autonomy of the parties, and clarify the ownership of property at the time of marriage.

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