Analysis of the legal issues related to the division of property in a divorce agreement
Жанг Е. Analysis of the legal issues related to the division of property in a divorce agreement // Молодой ученый. 2016. №12. С. 599-605. URL https://moluch.ru/archive/116/31498/ (дата обращения: 19.02.2018).
Marriage law of the Supreme People's Court interpretation (iii) 14th on the effectiveness of the Division of marital property agreements related to how to explain, but the dispute about the nature of the agreements still exist. Scholars and practitioners are mainly developed the following four views: identity of the single legal act, a single property, attached conditions attached with legal acts and legal acts, is now still have not formed a consensus, resulting in judicial practice of judges results in large differences. Starting from the current legislation, to analyze the pros and cons, advantages and disadvantages of the existing views, can be found the Division of marital property agreement is one of the few mixed legal civil juristic acts, but also the identity of the independence of legal or a conditional identity law. Based on this understanding to the Division of marital property agreements conditions and time in determining the problem to make the referee.
Key words:division of property in a divorce agreement, legal character, conditional legal acts
Division of property in a divorce agreement is a kind of contract on disposition of property, but it presents in relationship of marriage and family, and it has the status of property, however, its implementation should take divorce legal facts to the condition. In China's current judicial practice the division of property in the divorce agreement usually occurs in both cases: the first occasion, the couple divorced voluntarily and signed a divorce agreement, in this case both the division of property and conformed agreement on the property because of the divorce are both included, but then when one of them go back on the spouse, and refused to honor the divorce agreement, the resulting of controversy come out from here. Processing in this case can be found in the Article eight «Marriage Law interpretation (b)» . The second case, the couple can’t get agreement in the divorce, and they go to court to deal with the problem, this case is divided into two cases discussed, one is the couple agree with the other contents in the divorce agreement, they just do not agree with the division of property in the agreement, the party request the court to dispose of the property by the division of property in the agreement, the other party does not agree with it, the resulting of controversy come out. This situation has been resolved in the Article XIV «Marriage explanation (c)» . Another is that both sides do not agree to the other terms of the divorce agreement, but just agree with the division of property in the agreement, if not considered valid across the board, which is in contradiction with autonomy. In such a case in China's current marriage law there is no clearly defined legal norms. If this problem wanted to be deal with in the fair and equitable way in practice, so we must have a clear understanding about the type, nature and legal effect of division of property in a divorce agreement.
- The meaning of the division of property in a divorce agreement and its Judicial Application (A) to clarify the concept and definition of the nature.
Referring to «Marriage Law of People’s Republic of China» and the relevant provisions of the «Marriage Registration Regulations»,  the division of property in a divorce agreement generally refers to the fact that the division of property in a agreement appears as a condition of the divorce law facts and the couple during the marriage relationship continues to exist to achieve. This kind of agreement sometimes appears together with the problem of child-rearing in the protocol, it is also called the pre-litigation divorce agreement.
This kind of agreement is generally reached during relationship existing, one or both sides in order to achieve the purpose of divorce, make conditional concessions desirable in the division of property, etc., so it has the nature of the contract. But firstly we need to clarify that it belongs to the protocol concerning status or belonging to agreement on property relations, or both . Chinese Contract Law Article 2 states: «In this Act alleged contract is established between equal natural persons, legal persons or other organizations to change or terminate civil rights and obligations relationship agreement. Concerning any personal relationship of marriage, adoption, guardianship applicant other laws ». Visible, the agreement concerning the status is different with the agreement of the property relations, the agreements concerning the status because of involving the establishment, changing or cancelation of identity relations, will generally be limited or special adjustment of the law, what’s more, it can not be completely the consensus by the parties to complete. The nature of the agreement determines the difference in time for entry into force and, Mr. Shi Shangkuan, which have discussed divorce contract, thinks it is leased on the family law, and contract law on the general claims of its different elements and effectiveness. Because in China's current law, the divorce agreement must involve the division of property, therefore the division of property agreement is also different from the general contract. The agreement established during the marriage, the relationship between husband and wife as a legal basis and precondition for the lifting of the entry into force of the agreement, is the relationship between identity and associated protocols. The agreement set the dividing marital property as the main content, the conditions attached to the entry into force of the achievements, the formation of the property to pay legal relationship both protocol property relations.
- Division of property in a divorce agreement under the provisions of the relevant judicial practice
- Divorce by agreement and division of property agreement.
Divorce, also known as administrative procedures of divorce, and is different with the divorce by proceedings. Since the agreement is that the husband and wife want to relieve the marriage, also known as consensual divorce .
In the divorce by agreement, the both sides of marriage reached a divorce agreement, one side wants to go back, the other takes with the requirements of division of property in a divorce agreement. For this case, marriage is not expressly provided for, but the «Marriage Law interpretation (b)». Article VIII been involved.
Interpretation of the Supreme Court considered the meaning of that section contains the following layers: Premise (1) of Article VIII of the marriage relationship is a divorce agreement exists between the parties, the existence of the divorce agreement involving the division of property section, and the parties voluntarily take registration authority divorce manner; (2) the provisions of the divorce agreement the parties separately on property division agreement or the division of property on the terms for both men and women are legally binding; (3) divorced for a year, because the parties to fulfill the agreement but the division of property lawsuit, the people's court shall accept.
«Marriage Law interpretation (b)» Article 8, paragraph mentions two forms of agreement on the division of property: the divorce agreement regarding the division of property and the terms of the agreement on the division of property due to divorce reached . When the latter reached in the divorce, so the establishment of the entry into force should be consistent with the divorce agreement, which «legally binding» refers to the effect after the divorce. The «binding» refers to the special legally binding, refers to both a particular responsibility for the implementation of specific obligations in the contract, that the contract entered into force. The former reached before a divorce, what to take effect prior to the registration or registration after the entry into force, no law expressly provided. I believe that the «legally binding» only exists in before the divorce, but also in divorce. Divorce before the «legally binding» refers only generally legally binding, post-divorce «legally binding» means special legally binding. Since the division of property between the two sides based on the divorce meant to do this, only the dissolution of the marriage, which has a special agreement was legally binding, the parties to fulfill each request before this property payment obligations. Combined with Article 8 (2) point of view, it can be inferred that this agreement for both sides to take effect after the registration. Because the scope of the second paragraph is «to perform the above division of property agreement».
- Litigation Divorce and division of property agreement.
Divorce proceedings, since divorce often brought by a party to the court proceedings, and hold the other party opposition attitude, also known as
«Party requested a divorce». Because there are legal reasons for that set of reasons, the husband and wife to one of his divorce complaint filed to the court, because the decision to form the pin Divorce Marriage Solutions, also known as divorce.
The divorce proceedings in the divorce division of property agreement, is divided into two cases: one case in the divorce proceedings, the parties reached a mediation by the court, the court may make pursuant to a divorce mediation and dissolution of marriage or grant a divorce verdict and both are based on the division of property agreement was processed on the division of property; two kinds of situation is that both sides have reached an agreement before the divorce proceedings on the division of property issues, since the divorce comes a question or child support, or the like to go back to the original agreement divorce court, the party out of the original division of property agreement has been reached. The agreement can as a people's court in accordance with the division of marital property controversial, difficult to determine. Therefore I believe that, in a sense, the second case of divorce, division of property agreement is more of a concern.
− The District Court found substantive.
Before the «Marriage Law interpretation (c)» promulgated, have occurred on the appeal before the division of property agreement dispute the effectiveness of the judicial practice. Due to the lack of a clear legal basis, some provinces Court for «trial business guidance» to provide for the form, there are two opinions. First, the pre-registration advocate divorce, divorce, division of property agreement is binding, unless the lack of entry into force of the agreement itself.
«As the Shenzhen Intermediate People's Court» trial marriage guidance on the case (Trial) «Article 21: the parties during the marriage relationship continues to exist for the divorce and division of property or a divorce settlement agreement, one party agrees to go back without handle mandatory registration of divorce, the other party and the prosecution asked for a divorce request in accordance with the divorce agreement on the terms of the division of property or the division of property jointly owned property protocol processing problems, the people's court should be supported in principle, but the agreement in violation of laws, administrative regulations or if the agreement except on the property listed and objectively unable to perform does not exist. division of property not covered by the terms of the agreement or jointly owned property, the people's court may separate verdict ».
«As Jiangsu Provincial Higher People's Court» on the application
Secondly, the advocates before the registration of divorce, divorce, division of property agreement not binding.
«If the Shanghai Higher People's Court» on the trial of a number of issues of marriage and family disputes opinions «Article VII: reached during the period the couple lived together or division of property separation agreement, the parties have no evidence to prove void or voidable, modifiable legal situation, or an agreement has been fulfilled, the agreement shall be deemed to be binding on both parties. If the division of property in divorce agreement is conditional, but the two sides did not divorce, the parties should be allowed to go back ».
− The relevant provisions (2) the Supreme Court judicial interpretation.
Supreme People's Court on July 4, 2011 through the «Marriage Law interpretation (c)», the interpretation of Article fourteen pairs of pre-trial division of property agreement effects were explained to me. Judicial interpretation which explicitly defines marriage parties in divorce nowhere, after the divorce proceedings of the previous division of property agreement objection, the division of property agreement is not in force, according to the situation of the judges should be re jointly owned property segmentation. In this case, the marital property agreement for both parties do not produce legally binding, it can not be the basis for the judge to settle a lawsuit.
«Marriage explanation (c)» Article XIV only resolve a situation that is, the parties agreed to a divorce nowhere, the party to go back on the agreement on the division of property, the division of property agreement not in force. If the two sides agreed to a divorce nowhere, because other provisions, such as child support does not reach a unified view, while the division of property agreement without objection, then the effect should the division of property agreement when how? «Marriage explanation (c)» does not provide for this.
Second, the nature of divorce, division of property agreement views Inspection and Evaluation
«Marriage explanation (c)» not before the promulgation of the validity of the divorce division of property agreement, academic controversial. Because of the nature of divorce, division of property agreement understanding differences, resulting in large differences in the judicial practice of referees results. This not only affects the authority of the administration of justice, but also affected the social harmony and stability of marriage. «Marriage explanation (c)» although clearly defines the division of property agreement does not take effect in divorce nowhere, the party in divorce proceedings in the division of property agreement objections when, but we respect the nature of pre-trial divorce, division of property agreement is still not reached a unified opinion. Divorce property division agreement to study the nature of the problem, we must explore the nature of the divorce settlement. The nature of the divorce agreement, there are some points the following theory:
- a single agreement involving the relationship between identity.
Such view is that divorce division of property agreement reached by the parties, the nature should relate to a single identity relationship agreement, only the intention to divorce. Before the marriage registration office without official registration, both spouses should be allowed to have the rights to honor, a People's Court in such cases, unless the parties have ratified the agreement does not otherwise take effect, the couple both parties not produce legal effects, either for divorce agreement itself, or involving child support, division of property agreement, can not be treated as a people's court for divorce cases. That is only the registration authority as the only effective elements, without registration of the divorce agreement does not effect the marriage the parties do not have any binding force, have the rights of any party go back. In that statement on the division of property agreement and Justice interpretation consistent.
I believe that this view applies to the couple's divorce administrative procedure confirmed case of dissolution of marriage is undoubtedly correct understanding. However, according to the theory constitute legal acts, which ignores the divorce agreement contains a number of effects of meaning: the meaning of marital relationship including disarmament, division of jointly owned property to determine the meaning and the meaning of child support issues. Thus, divorce is not a simple identity of behavior can be summarized.
- mixed civil agreement/
The view that the divorce agreement is a written agreement for an integrated personal relations, property, child support, etc., which.
Are hybrid legal nature of a civil contract. Divorce agreement both the personal nature of the relationship of the content, but also details about the nature of the property, including the contents of the former relationship between divorce and child support, the latter is about the division of property, debt treatment. Divorce settlement agreement concerning personal relations, can only take effect upon confirmation of the marriage registration office. The agreement on property relations is the general nature of a civil contract, in accordance with the autonomy of the parties, the agreement from the time the parties have reached a consensus on effectiveness. Some scholars have questioned the point of the following two points: First, artificially cutting property in a divorce agreement identity attribute, attempts to resolve the validity of the principle of the contract for the purposes of divorce division of property agreement, which is the «Marriage Law interpretation (c)» provisions inconsistent; second is to have the force of law since the two sides reached a consensus, if not divorce, division of property agreement can separate out of the property division of fear is difficult to explain. On the second question, some scholars have interpreted as follows: Divorce split agreement signed, both sides neither check nor go to court, but the continuation of the marital relationship . This situation can be seen as either party backs the other default, depending on both sides may be revoked, the result is the way to acquiescence annulled the previous agreement, or reach a new agreement, so as to continue the marital relationship, living together, naturally the original agreement failure is essentially replaced by a new agreement the old agreement, which is the result of autonomy, and we can not deny the division of property agreement of both parties have produced a legally binding. That is to achieve the division of property divorce agreement reached since the entry into force when signed by the two parties, but the law also gives the parties the right to change and cancellation.
I believe that the idea is actually confuse the division of property in divorce and marital property agreement stipulated limits. «Marriage Law» Article 19 of the couples can use writing conventions acquired during the marriage relationship continues to exist property is individually owned, jointly owned or partially owned by each, some common to all. Marital property agreement in principle signed by both parties to take effect on marriage during the existence of property ownership deal with marital property agreement system, fundamentally different to divorce and division of property condition exists.
- complex legal identity.
«Marriage explanation (c)» after the promulgation, some scholars believe that the content of a settlement agreement with a complex nature, be judged according to the effect of meaning contained, which is a mix of several legal acts, involving the lifting of the contents of the marital relationship, but also on property segmented content, but it is the capacity of a legal act has relevance in effect. Because the identity of legal act refers to the production of personal relations and property relations to identity and identity caused by the changes and elimination of legal acts for the purpose of including forming and accompanying behavior categories. The so-called direct the formation of behavior refers to the occurrence of certain relatives of identity, change or eliminate the legal purposes, such as marriage, divorce, adoption, and other acts. The so-called accompanying behavior refers to the behavior of the formation of the premise, the accompanying legal acts such as acts, such as conventions related to marital property system, and agreements related to child support division of property upon divorce, etc.
So divorce division of property agreement is a typical accompanying legal acts. Forming behavior does not take effect accompanying behavior has no effect, that is, when not a divorce, divorce, division of property agreement has no effect. This view is consistent with the «Marriage Law interpretation (c)» requirement.
I believe that although this view can reasonably explain the parties agreed to a divorce nowhere, the party division of property agreement to honor, a situation which the division of property agreement not in force, but if the two sides agreed to a divorce nowhere, because other provisions, such as child support does not reach a unified views, while the division of property agreement without objection, then the effectiveness of the division of property agreement then? If you simply finds its accompanying behavior even without the entry into force is not established whether this respect and autonomy in the field of private law contradict the existence of a waste of judicial suspected of judicial resources?
- the conditions attached to a civil agreement.
The idea that divorce is a protocol attached to the entry into force, at the time of the achievements of the agreed conditions, ie spouses contract People's Court divorce registration in force or to the registration office. On its entry into force, shall exclude the application of the provisions of Article 44 of the «Contract Law», and should refer to the «Contract Law» Article 45 stipulates that the divorce division of property agreement as part of the divorce settlement, only the parties to the marriage parties after the divorce takes effect. Such claims resulting effect on the division of property agreement with the «Marriage Law interpretation (c)» provisions is the same . The statement has developed into two specific point of view, one divorce, division of property agreement is a protocol attached substantially only divorce conditions. Because divorce agreement of the parties and their children hurt minimal cost and time spent on the economic costs, energy costs low, while the divorce proceedings to bring the parties tend to be hostile, conflict and harm. The parties desired smooth divorce, divorce by agreement only way to achieve. Second, divorce property division agreement is conditional two cases, the conditions attached to the agreement to divorce in the marriage registration office for divorce registration, obtain a divorce certificate conditional on achievement; attached to the divorce proceedings as a condition to a direction divorce court, and the court finds that their marital affection no longer exists as a condition of success.
Some scholars believe that the divorce settlement agreement is conditional property civil legal act to «divorce» for the division of property agreement to delay the entry into force of the conditions, where the «divorce» including divorce and divorce this argument is debatable. Although divorce property division divorce agreement entry into force, but not the conditions attached to delay legal action. Because the conditions attached to delay legal action before the condition is not satisfied, though not take effect, but have no binding force, the parties can not be arbitrarily removed, nor the conditions to promote achievement of malicious or prevent conditions of achievement. If the parties have maliciously promote achievement of conditions, it shall be determined condition is not achievement. The divorce agreement is legally binding only appear after the divorce, does not comply with the conditions attached to legal characteristics. This opinion will be detailed in the next section to refute.
Third, the division of property in divorce Reinterpretation of the nature of the agreement:
- the division of property agreement is a mix of several legal acts of a civil legal act.
Content divorce settlement has a composite nature, comprising a number of mixed legal acts. Typically, the divorce agreement mainly includes three parts: First, releasing the contents of the marital relationship; the second is the content division of jointly owned property; third is to compensate property between the spouses, minor children as well as compensation for damage to the contents of upbringing. Agreement should be regarded as a still a number of legal acts should be judged according to the basic theory of legal acts.
Legal acts with intention as an element, the divorce agreement is a mix of several acts or behavior, should be based on the effect of the meaning it contains a number or a judge. Effect mean divorce agreement contained, respectively lifted the marital relationship, marital property division, child support is determined attribution, meaning these effects generate different legal consequences.
Accordingly, the number of divorce agreement as a mixed behavior should belong to the proper division of property agreement is a mix of several legal acts of a civil legal act when doubt.
- the division of property agreement is a legal act having independent identity.
Most scholars believe that the divorce agreement in which the terms of the division of property or agreement must be a whole can not be separated, so the division of property agreement is not independent, but rather divorced from a master agreement protocol.
However, this understanding will inevitably attract some logical contradiction, first, because the conditions make it independent of the entry into force of the division of property agreement exists, which is set up with a settlement agreement entered into force or not has no relevance; secondly, these two agreements is not a solution with a relationship, but the relationship between two substantially different, namely property and personal relations.
«Marriage Law interpretation (b)» Article IX provides that both parties agreed to a divorce after one year on the disposition of property issue estoppel, modify or revoke a request disposition of property agreement, the people's court shall accept . Visible property division agreement or the terms of independence, and is alone, alone prosecuted.
- the division of property agreement is a conditional legal status.
Division of property agreement should be conditional legal act, rather than accompanying behavior and the formation of behavior relative. Some scholars believe that the accompanying behavior before the entry into force of the formation of non-binding acts, and conditional legal act before the condition is not satisfied that is binding. First, as in the accompanying behavior theory, any party may lift that is free to go back, this seems to mean protecting the freedom of the parties, but in fact undermines the division of property of the party to make concessions. Secondly, the basic elements of classical contract is the desirable property rights and obligations are desirable property rights and obligations of the contract led to the establishment. Usually two sides reached a consensual contract is established. If the accompanying behavior prior to the formation of non-binding acts into effect, which the two sides reached consensus exists contract is established when a logical contradiction . Because the accompanying behavior and behavior is formed only on the effectiveness of the association, rather than on the relevance of the establishment, before the formation of behavior is not in force, accompanying behavior has been established, namely the establishment of a general legally binding, conditional and legal conditions in minors before it is established in the state without the entry into force, it can only have general legally binding, so the accompanying behavior is not in force prior to the formation of a non-binding behavior is not logical reasoning.
Conditions divided into so-called dual conditions, arbitrary conditions and mixing conditions. Even as conditions for achievement depends not upon the will of the parties; arbitrary conditions for achievement depends on the will of one party. Mixing conditions, and decide whether the conditions are accomplished by a combination of will and the fact that occasional parties. Fiscal conditions should be attached to the agreement dividing points for discussion in divorce, the condition is whether the achievements of registration of divorce or not, can the parties will, which is free to the conditions attached conditions; in the divorce proceedings, the conditions are achievements namely court divorce or not, it does not depend on the will of the parties, the conditions attached to the coupling conditions.
Fourth, the division of property in the divorce agreement conditions and time of entry into force.
Relationship (a) divorce, division of property agreement with marital property agreement system.
Divorce settlement agreement includes three aspects: the dissolution of marriage; the division of property; child support. The first two belong to the personal relationship between the protocol agreement, «Contract Law» clearly states that «the agreement concerning personal relationships marriage, adoption, guardianship, etc., other applicable laws. " The entry into force of such civil action is often prescribed special procedural elements. Because «strict procedural requirements helps urge the parties to engage in deliberate intention, it is obviously necessary to conduct marriages and other family law behavior on». Marriage, guardianship and other acts involving stable identity relations, publicity and transparency are of great significance for the parties and society, so in addition subject to civil legal acts are usually effective elements, the need to have special conditions of entry into force — registration, that have to be style sex. Divorce agreement on the division of property, means the agreement of both spouses to ownership and disposal of the party after divorce or divorce proceedings property reached. Therefore, the agreement is a Marital Property System in a convention, but attached a condition. The agreement may occur in the divorce, but also can occur in one divorce proceedings divorce. Of course, time and other conditions occur in different types of divorce in force are not the same.
- conditions in different types of divorce in force and the time.
Entry into force of the division of property agreement and Time 1. divorce in the divorce, the need to follow the registration authority to discuss different categories, China's current handling divorce organs including the civil affairs departments and the judiciary, the civil affairs department through administrative procedures as the judiciary through judicial procedures. When handling civil affairs department, division of property agreement requires the registration of divorce in the civil affairs department, and obtained a divorce certificate to enter into force; when handling the judiciary, the judiciary needs to be issued by the mediation. Mediation divorce certificate issued by the civil affairs department issued or whether the judiciary can be regarded as conditions attached to the achievement, the parties signed the agreement so the property division takes effect. If one party fails to fulfill the agreement, the other party may apply to the court or an application execution.
- The entry into force of the protocol division of property in divorce proceedings the conditions and time
Because property division agreement of both the nature of identity act, its entry into force and therefore need special publicity requirements. In the divorce proceedings, the court can not be a direction for the condition is satisfied, otherwise it is impossible and court mediation divorce distinguish. So it has the typical effect of publicity in the divorce proceedings in court that granted the divorce judgment is made the judgment condition is satisfied. Here, we need to analyze the following two circumstances:
First, a court direction, the two sides agreed that the agreement without the consent of the other division of property agreement, this situation has been the «Marriage Law interpretation (c)» Article XIV explanation, this division of property agreement is invalid, the court may, without the agreement constraints on the jointly owned property should be divided according to the actual legal situation. Because of divorce or not did not make the decision, so the agreement should belong to the establishment without the entry into force, so the actual effect of the operation and administration of justice under this theory to explain the same. If the law only and acknowledge the efforts of its establishment or the entry into force of the agreement to the court, it will not help the parties negotiate in the proceedings, because the parties will bring agreement for fear of negative effects and give consultations. Marriage parties in special relationship, divorce issues at stake, the parties should be allowed to consider repeated consultations, finds its entry into force that is not given the opportunity to the parties in the proceedings of the second consultative mediation, the two sides only in the final consensus, to reflect the true meaning of the parties represented. Prior to this, the parties should be given full consideration, chance of repeated consultations, in order to maximize the autonomy of private law.
The second is a direction of the court, the parties agree that the division of property agreement without the consent of other protocols. In this case, since the division of property has reached a consensual agreement and contains the rights and obligations of the property, so the agreement has been established and a general legally binding. However, due to the entry into force without success, it does not have particularly become effective legally binding effect. According to the agreement the parties can not ask the court judgment that is not the basis for the parties to petition to discharge. Otherwise the effect is no different with the entry into force of the agreement. The parties agree to the division of property agreement of the divorce proceedings, the court should actively respect the autonomy of the parties, and do not have established the division of property agreement judicial intervention, after making a grant divorce court decision, the parties can be based on the agreement in force request of the parties to perform or apply for court enforcement. This principle of respecting the autonomy of private law in the field, while saving judicial resources.
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