论夫妻日常家事代表权
发布时间：2019-06-06 09:15
【摘要】： “日常家事代理权”起源于古代罗马。那时的妇女在婚后必须受夫权的支配而发生人格的减降,不再享有完全民事权利能力。为了使妻子能够正常的管理家事,维持家庭的正常生活,当时法律和社会都认可了妻子的日常家事代理权。“家事代理权”是处于从属地位已婚妇女在家事管理特别是在家庭财产的处置方面所具有的一种资格。随着社会的发展,妇女解放运动的兴起,许多国家在修改婚姻家庭法时,变“妻为夫之日常家事代理人”为“夫妻相互享有日常家事代理权”,尤其是第二次世界大战以来,夫妻相互享有代理权的主张逐渐得到社会承认。在现代法制社会中,夫妻在婚姻家庭生活中具有平等的法律地位,“家事代理”这种表述方式已经失去了原有社会关系的基础。当前理论界所认为的“日常家事代理权”并不能全面反映夫妻一方处置共同财产这一行为的法律特征。因家庭生活需要夫妻在处置共同财产的权利上依法享有平等处理权,而代理人不可能与被代理人共同享有同一实体权利。“日常家事代理”的行为特征和法律后果为“民事代表”的逻辑内涵所包容,明显体现出“民事代表”的特点,这种“平等处理”实际上是日常家事代表权的体现,而夫妻代理权仅适用于夫妻非因日常生活需要,对共同财产处置的范围。我国婚姻法解释(一)第十七条第一款规定:“夫或妻在处理夫妻共同财产上的权利是平等的,因日常生活需要而处理夫妻共同财产,任何一方均有权决定。”这一规定体现了夫妻日常家事代表权的特征,夫妻日常家事代表权在法律效力上具有绝对性,即自然有效;而第十七条第二款的规定:“夫或妻非因日常生活需要对夫妻共同财产做重要处理决定,夫妻双方应当平等协商,取得一致意见。”指的是夫妻代理权,在法律效力上适用民事代理的规定。明确日常家事代表权和夫妻代理权,一方面有利于夫妻共同财产的平等保护,另一方面也可以引导夫妻正确行使自己的权利、承担相应的义务,以减少夫妻经济纠纷,促进家庭和谐。对夫妻一方的财产处置行为的合理定性,以及对日常家事代表权和夫妻代理权的正确判断,对维护社会财产交易安全和解决夫妻共同财产处置纠纷具有一定的法律意义。
[Abstract]:The power of daily family agency originated in ancient Rome. At that time, women had to be dominated by husband's power after marriage, and their personality decreased and they no longer enjoyed full civil rights. In order to enable the wife to manage family affairs normally and maintain the normal life of the family, both the law and the society recognized the wife's daily family affairs agency at that time. Family agency power is a qualification of married women in subordinate position in family management, especially in the disposal of family property. With the development of society and the rise of women's liberation movement, when many countries amended the marriage and family law, they changed "wife into husband's daily family agent" into "husband and wife enjoy daily family affairs agency power", especially since the second World War. The idea that husband and wife enjoy the power of agency with each other has been gradually recognized by the society. In the modern legal society, husband and wife have equal legal status in marriage and family life, and the expression of "family agency" has lost the foundation of the original social relations. At present, the theory circle thinks that the "daily family affairs agency power" can not fully reflect the legal characteristics of the husband and wife's disposal of common property. Because family life requires husband and wife to have equal right to dispose of common property in accordance with the law, but the agent can not enjoy the same substantive rights with the principal. The behavior characteristics and legal consequences of "daily family agency" are inclusive by the logical connotation of "civil representative", which obviously reflects the characteristics of "civil representative". This kind of "equal treatment" is in fact the embodiment of daily family affairs representation. However, the power of agency of husband and wife is only applicable to the scope of disposal of common property, which is not due to the needs of daily life. The Marriage Law of our country explains (1) Article 17, paragraph 1, which states: "the right of husband or wife to deal with the joint property of husband and wife is equal, and either party has the right to decide on the treatment of joint property of husband and wife because of the needs of daily life." This provision embodies the characteristics of the daily family affairs representation of husband and wife, and the daily family affairs representation of husband and wife is absolute in legal effect, that is, natural validity. The provisions of Article 17, paragraph 2: "if a husband or wife does not make an important decision on the common property of the husband and wife because of the needs of his or her daily life, the husband and wife shall consult on an equal footing and reach an agreement." Refers to the power of agency of husband and wife, in the legal effect of the application of civil agency provisions. Defining the representation of daily family affairs and the agency power of husband and wife, on the one hand, is beneficial to the equal protection of husband and wife's common property, on the other hand, it can also guide husband and wife to correctly exercise their rights and undertake corresponding obligations, so as to reduce the economic disputes between husband and wife. Promote family harmony. The reasonable characterization of the property disposal behavior of one husband and wife, as well as the correct judgment of the representation of daily family affairs and the agency power of husband and wife, are of certain legal significance for maintaining the security of social property transactions and resolving disputes over the disposal of common property between husband and wife.
【学位授予单位】：华中师范大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：D923.9
本文编号：2494244
[Abstract]:The power of daily family agency originated in ancient Rome. At that time, women had to be dominated by husband's power after marriage, and their personality decreased and they no longer enjoyed full civil rights. In order to enable the wife to manage family affairs normally and maintain the normal life of the family, both the law and the society recognized the wife's daily family affairs agency at that time. Family agency power is a qualification of married women in subordinate position in family management, especially in the disposal of family property. With the development of society and the rise of women's liberation movement, when many countries amended the marriage and family law, they changed "wife into husband's daily family agent" into "husband and wife enjoy daily family affairs agency power", especially since the second World War. The idea that husband and wife enjoy the power of agency with each other has been gradually recognized by the society. In the modern legal society, husband and wife have equal legal status in marriage and family life, and the expression of "family agency" has lost the foundation of the original social relations. At present, the theory circle thinks that the "daily family affairs agency power" can not fully reflect the legal characteristics of the husband and wife's disposal of common property. Because family life requires husband and wife to have equal right to dispose of common property in accordance with the law, but the agent can not enjoy the same substantive rights with the principal. The behavior characteristics and legal consequences of "daily family agency" are inclusive by the logical connotation of "civil representative", which obviously reflects the characteristics of "civil representative". This kind of "equal treatment" is in fact the embodiment of daily family affairs representation. However, the power of agency of husband and wife is only applicable to the scope of disposal of common property, which is not due to the needs of daily life. The Marriage Law of our country explains (1) Article 17, paragraph 1, which states: "the right of husband or wife to deal with the joint property of husband and wife is equal, and either party has the right to decide on the treatment of joint property of husband and wife because of the needs of daily life." This provision embodies the characteristics of the daily family affairs representation of husband and wife, and the daily family affairs representation of husband and wife is absolute in legal effect, that is, natural validity. The provisions of Article 17, paragraph 2: "if a husband or wife does not make an important decision on the common property of the husband and wife because of the needs of his or her daily life, the husband and wife shall consult on an equal footing and reach an agreement." Refers to the power of agency of husband and wife, in the legal effect of the application of civil agency provisions. Defining the representation of daily family affairs and the agency power of husband and wife, on the one hand, is beneficial to the equal protection of husband and wife's common property, on the other hand, it can also guide husband and wife to correctly exercise their rights and undertake corresponding obligations, so as to reduce the economic disputes between husband and wife. Promote family harmony. The reasonable characterization of the property disposal behavior of one husband and wife, as well as the correct judgment of the representation of daily family affairs and the agency power of husband and wife, are of certain legal significance for maintaining the security of social property transactions and resolving disputes over the disposal of common property between husband and wife.
【学位授予单位】：华中师范大学
【学位级别】：硕士
【学位授予年份】：2008
【分类号】：D923.9
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