我国夫妻约定财产制法律问题研究
发布时间：2019-06-11 18:39
【摘要】：夫妻约定财产制作为夫妻财产制的重要内容,是指婚姻当事人以协议的方式对其夫妻财产关系进行自主安排,并排斥法定财产制适用的制度。2001年修改后的《婚姻法》立足于国情,对约定财产制的内容、形式及效力等方面作出进一步的具体规定,肯定了该制度在我国婚姻家庭立法中的地位。然而随着社会经济的发展,公民财产增多,社会价值观日趋多元化,现行的约定财产制立法规定简单,不易操作,已经难以适应实践中日益复杂的夫妻财产关系。司法审判人员对约定财产制的不同理解造成实务中配偶间财产约定法律适用的混乱,给婚姻当事人的权利义务关系带来不确定性,不利于夫妻财产权利的保护。笔者认为厘清约定财产制的基本理论才是对夫妻财产约定问题准确认定、正确裁判的前提。除引言和结语外本文共分为五个部分:第一部分,夫妻约定财产制概述。该部分介绍了夫妻约定财产制的概念和特征,着重分析该制度的性质及立法意义,为后文探讨约定财产制的法律适用问题奠定了理论基础。第二部分,国外夫妻约定财产制的比较法考察。该部分分析了两大法系主要国家关于夫妻约定财产制的立法规定,并就约定的要件、内容、效力等方面予以比较研究,以期对我国的立法完善提供借鉴与指引。第三部分,我国夫妻约定财产制的立法分析和完善。该部分论述了我国夫妻约定财产制的立法沿革及现状,重点阐述了我国约定财产制立法在主体资格、立法模式、对内效力、对外公示等事项的立法缺失,并就上述相关问题提出完善建议。第四部分,我国夫妻约定财产制对物权变动的影响。该部分将学界对于约定财产制下物权变动的各种观点予以比较分析,通过论述物权变动的基本形式及约定财产制下物权变动的特性,得出结论:夫妻财产权属的约定符合非依法律行为物权变动的特质,无需履行公示原则,可以直接发生夫妻间财产权利变动。第五部分,我国夫妻约定财产制下夫妻间房产赠与约定的效力。该部分对夫妻间房产赠与约定与一般赠与行为进行比较,并对特殊赠与规则的不适用原因予以阐述,指出夫妻间房产赠与约定属于约定财产制,配偶双方均受该协议束缚。
[Abstract]:The important content of husband and wife agreed property system refers to the marriage parties to arrange their marital property relationship independently by agreement, and reject the applicable system of legal property system. Based on the national conditions, the Marriage Law revised in 2001 makes further specific provisions on the content, form and effect of the agreed property system, which confirms the position of the system in the marriage and family legislation of our country. However, with the development of social economy, the number of citizens' property is increasing, and the social values are becoming more and more diversified. The current agreed property system legislation is simple and difficult to operate, and it is difficult to adapt to the increasingly complex property relationship between husband and wife in practice. The different understanding of the agreed property system by the judicial personnel results in the confusion of the application of the property agreement law between the spouses in practice, which brings uncertainty to the rights and obligations of the parties to the marriage, which is not conducive to the protection of the property rights of the husband and wife. The author believes that the basic theory of defining the agreed property system is the premise of accurate identification and correct judgment of the property agreement between husband and wife. In addition to the introduction and conclusion, this paper is divided into five parts: the first part is an overview of the property system agreed by husband and wife. This part introduces the concept and characteristics of the agreed property system of husband and wife, and focuses on the analysis of the nature and legislative significance of the system, which lays a theoretical foundation for the later discussion of the legal application of the contractual property system. The second part is the comparative study of the property system of husband and wife agreement in foreign countries. This part analyzes the legislative provisions on the agreed property system of husband and wife in the main countries of the two legal systems, and makes a comparative study on the elements, contents and effects of the agreement, in order to provide reference and guidance for the legislative improvement of our country. The third part, the legislative analysis and perfection of the agreed property system of husband and wife in our country. This part discusses the legislative evolution and present situation of the agreed property system of husband and wife in our country, with emphasis on the lack of legislation in the subject qualification, legislative mode, internal effect, publicity and so on, and puts forward some suggestions for perfecting the above related problems. The fourth part, the influence of husband and wife agreed property system on the change of real right in our country. This part compares and analyzes the various viewpoints of the change of real right under the system of agreed property, and through the discussion of the basic form of the change of real right and the characteristics of the change of real right under the system of agreed property, draws the conclusion that the agreement of the property right of husband and wife accords with the characteristics of the change of real right of non-legal act and does not need to perform the principle of publicity, and the change of property right between husband and wife can occur directly. The fifth part, the husband and wife agreed property system under the husband and wife real estate gift agreement effect. This part compares the real estate gift agreement between husband and wife and the general gift behavior, and expounds the reasons why the special gift rule is not applicable, and points out that the real estate gift agreement between husband and wife belongs to the agreed property system, and both spouses are bound by the agreement.
【学位授予单位】：山西大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.9
本文编号：2497386
[Abstract]:The important content of husband and wife agreed property system refers to the marriage parties to arrange their marital property relationship independently by agreement, and reject the applicable system of legal property system. Based on the national conditions, the Marriage Law revised in 2001 makes further specific provisions on the content, form and effect of the agreed property system, which confirms the position of the system in the marriage and family legislation of our country. However, with the development of social economy, the number of citizens' property is increasing, and the social values are becoming more and more diversified. The current agreed property system legislation is simple and difficult to operate, and it is difficult to adapt to the increasingly complex property relationship between husband and wife in practice. The different understanding of the agreed property system by the judicial personnel results in the confusion of the application of the property agreement law between the spouses in practice, which brings uncertainty to the rights and obligations of the parties to the marriage, which is not conducive to the protection of the property rights of the husband and wife. The author believes that the basic theory of defining the agreed property system is the premise of accurate identification and correct judgment of the property agreement between husband and wife. In addition to the introduction and conclusion, this paper is divided into five parts: the first part is an overview of the property system agreed by husband and wife. This part introduces the concept and characteristics of the agreed property system of husband and wife, and focuses on the analysis of the nature and legislative significance of the system, which lays a theoretical foundation for the later discussion of the legal application of the contractual property system. The second part is the comparative study of the property system of husband and wife agreement in foreign countries. This part analyzes the legislative provisions on the agreed property system of husband and wife in the main countries of the two legal systems, and makes a comparative study on the elements, contents and effects of the agreement, in order to provide reference and guidance for the legislative improvement of our country. The third part, the legislative analysis and perfection of the agreed property system of husband and wife in our country. This part discusses the legislative evolution and present situation of the agreed property system of husband and wife in our country, with emphasis on the lack of legislation in the subject qualification, legislative mode, internal effect, publicity and so on, and puts forward some suggestions for perfecting the above related problems. The fourth part, the influence of husband and wife agreed property system on the change of real right in our country. This part compares and analyzes the various viewpoints of the change of real right under the system of agreed property, and through the discussion of the basic form of the change of real right and the characteristics of the change of real right under the system of agreed property, draws the conclusion that the agreement of the property right of husband and wife accords with the characteristics of the change of real right of non-legal act and does not need to perform the principle of publicity, and the change of property right between husband and wife can occur directly. The fifth part, the husband and wife agreed property system under the husband and wife real estate gift agreement effect. This part compares the real estate gift agreement between husband and wife and the general gift behavior, and expounds the reasons why the special gift rule is not applicable, and points out that the real estate gift agreement between husband and wife belongs to the agreed property system, and both spouses are bound by the agreement.
【学位授予单位】：山西大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.9
【引证文献】
相关硕士学位论文 前1条
1 魏敬乃;夫妻房产约定的法律适用研究[D];广西大学;2018年
，本文编号：2497386
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