夫妻不动产物权归属约定的性质与效力

The Nature and Effect of Agreement on the Attribution of Real Estate Property Rights of the Spouses

  • 摘要: 在自由式夫妻约定财产制的框架下,需厘清赠与合同与夫妻财产约定的单务性与双务性本质差异,以主观认定是否存在对待给付义务为标准,类型化区分认定夫妻不动产物权归属约定构成夫妻财产约定或者赠与合同。在构成夫妻财产约定时,可通过法律解释得出该约定在夫妻之间直接发生物权变动效力;在受让人拒绝履行或无法继续履行该约定时,可通过合同法定解除权与情势变更规则予以补救。在对外效力上,应以维护物权公示效力为原则,兼顾受让人与第三人的利益。在此基础上,审查夫妻自治行为正当性,避免夫妻假借自治行为逃避债务。对于转让人的继承人而言,根据夫妻约定的履行情况,决定其对内效力是否延伸至继承人。在构成赠与合同时,该约定同等适用赠与合同的相关规定产生相应的法律效力。

     

    Abstract: Under the framework of the free-form spousal property agreement system, the essential difference between the uni-duty and double-duty nature of the gift contract and the spousal property agreement is clarified. The existence of the obligation to pay which is identified in a subjective way is used as a criterion for making a typological distinction between what constitutes a spousal property agreement and a gift contract. In terms of the internal effect, through the way of legal interpretation of the agreement we can reach the conclusion that the direct effect of the change of property rights when the agreement constitutes a spousal property agreement; if the transferee refuses to perform or is unable to continue to perform, the legal right to rescind the contract and the rule of change of circumstances can be applied to remedy the unfairness that may occur. In terms of external effects, regardless of whether the change of property right is registered or not, the principle is to maintain the publicity effect of the property right, taking into account the interests of the transferee and the third party. On this basis, the legitimacy of the spouses' autonomous behaviors still should be examined to prevent them from avoiding debts by means of autonomous behaviors. In the case of the assignor's heirs, the performance of the spousal agreement determines whether its inward effect extends to the heirs. When constituting a gift contract, the agreement is equally applicable to the relevant provisions of the gift contract to produce the corresponding legal effect.

     

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