夫妻房产约定之法律适用论——兼评《婚姻法司法解释(三)》第6条

Analysis of the Applicable Law of the Couples' Real Estate Agreement:Comment on Article 6 of Judicial Interpretation( 3) of Marriage Law

夫妻房产约定以夫妻身份关系为基础,不具有无偿性。夫妻房产约定通常是为了实现、维持或保障夫妻共同生活,与普通赠与存在显著区别。将夫妻房产约定等同于普通赠与,不仅会导致婚姻的功利化,甚至会酿成道德危机。我国婚姻法实行的是开放式夫妻财产约定制度,夫妻房产约定当然包含其中,但有效的夫妻房产约定并不当然产生房屋所有权变动之效力。夫妻房产约定纠纷的解决,还是有赖于夫妻约定财产法律制度的完善这一切实可行的路径。

The husband and wife property agreement is based on the husband-and-wife relationship and does not have unpaid nature. It is usually to achieve, maintain or guarantee the husband and wife to live together and there is a significant difference from the ordinary gift. The stipulation of the husband and wife property agreement with the ordinary gift will not only lead to the utilitarianization of marriage, but even lead to moral crisis. China＇ s Marriage Law adopts an open-party matrimonial property agreement system. Of course, the husband and wife property agreement is included, but the effective husband-and-wife property agreement does not produce the effect of changes in the ownership of the house. To resolve the disputes between the husband and the wife, the civil code should be compiled as an opportunity. It is a practical way to improve the legal system of the husband and wife agreement.