论夫妻忠诚协议之效力

Demonstrate the Effect of Loyalty Contract between Husband and Wife

忠诚协议效力问题在理论上争议颇多,忠诚协议的效力认定难以一概而论,必须分情况讨论,笔者通过对忠诚协议的概念内涵、性质问题进行理论分析,结合各种学说及对一些立法例的评价,得出结论:当协议具有财产性和身份性时,其效力判断可以依据《合同法》进行,当协议纯粹为身份契约时,根据契约的本质来判断其效力。这样在立法和司法中才能尽量做到面面俱到,才不至于在碰到具体情况时束手无策或者不假思索就得出武断的结论。

There are much divergent views and confusion of legal effect on loyalty contract between husband and wife,which is hard to be generalized.So a distinction must be made to discuss.The author analyzed the concept and nature of loyalty contract between husband and wife through combining the different kinds of theories and evaluation of legislation in other countries.We can conclude that：when the nature of the contract combines the property with the identity,we can judge the effect of the contract according to contract law;when the contact is identity contract,we judge the effect according to the nature of the contract.So,it is given mature consideration to all aspects of a question in legislation and judicial practice,we wouldn＇t be at a loss what to do or make conclusion without thinking when we come across specific problem.