物权公示原则对婚内财产分割协议的掣肘与妥协

Restrictions and Compromise of Demonstrative Rules of Real Right to Marital Property Division Agreement

随着社会经济的快速发展,人们对家庭、婚姻的观念逐渐趋于理性和客观,在婚姻关系存续期间,往往会通过婚内财产分割协议的方式明确夫妻财产归属。我国《婚姻法》第19条明确规定了夫妻财产约定制度,充分肯定了婚内财产分割协议的合法性,体现了《婚姻法》对夫妻意思自由的尊重。但是,鉴于婚内财产分割协议是在夫妻关系存续期间制定,协议的履行均在婚姻家庭生活的背景下履行,夫妻在制定了婚内财产分割协议后,往往不会对所分财产的移转占有和变更登记,由此在司法实践中产生了不可调和的争议。婚内财产分割协议引起的物权变动与我国《物权法》第9条、第23条发生了冲突。基于夫妻关系的特殊性,应肯定财产分割协议对内部的效力;基于民法体系的完整性,物权公示原则宜从婚内财产分割协议的外部效力进行掣肘。

With the rapid social and economic development, people＇s attitude towards family and marriage is becoming more and more rational and objective. During the marriage, the marital property ownership is frequently ascertained by marital property division agreement. Article No. 19 of the Law of Marriage clearly stipulates the system of marital property agreement. It fully affirms the legitimacy of property division agreement in marriage and shows the respect for marriage freedom of husband and wife in the marriage law. However, marital property division agreement is always reached during the existence of marital relationship, and the performance of agreement is also fulfilled in the marriage and family life. Therefore, the couple has seldom carried out marital property division agreement so as not to transfer possession of the property and register the changes, which causes irreconcilable disputes in judicial practice. The change of property rights caused by marital property agreement is against the Articles No. 9 and No. 23 of China Property Law. On one hand, we should confirm the internal validity of the property division agreement based on the characteristic of marital relationship. On the other hand, demonstrative rules of real right should exert an external impact on the marital property division agreement based on the integrity of civil law system.