夫妻忠诚协议之法律效力与法律责任探析

An Analysis of the Legal Effect and Legal Responsibility of the Marital Loyalty Agreement

忠诚协议是指夫妻双方在结婚前后,以书面形式约定双方互负忠实义务,若因一方的不忠行为导致离婚,则需向另一方支付一定数额赔偿金或违约金的协议。目前对忠诚协议的法律属性及法律效力等问题尚存争议,本文通过梳理分析认为该协议是抽象的法定忠实义务的具体化表达,本质为非典型合同;协议是夫妻双方真实意思表示且不违反法律与公序良俗,满足民事法律行为的生效要件,因此应根据私法自治原则将其纳入法律调整范畴,赋予其法律效力;协议虽有身份协议之外观,但其核心是对违约责任的约定,协议的可执行性依赖契约理论支撑,因此在一方违反协议约定时应承担违约责任而非侵权责任,以切实保障婚姻无过错方的利益,实现弘扬家庭美德、树立优良家风的立法目的。

Loyalty Agreement refers to an agreement in which the husband and wife agree in writing before and after marriage that both parties have a duty of loyalty to each other,and if the divorce is caused by the infidelity of one party,they need to pay the other party a certain amount of compensation or liquidated damages.The agreement is a concrete expression of an abstract statutory duty of loyalty,which is essentially an atypical contract.The agreement,the true intention of the husband and wife,does not violate the law and public order and good customs,and meets the requirements for the validity of civil legal acts,so it should be included in the scope of legal adjustment in accordance with the principle of autonomy of private law,endows it with legal effect,and effectively protects the interests of the innocent party,so as to achieve the legislative purpose of promoting family virtues and establishing good family customs.Although the agreement has the appearance of an identity agreement,while its core is the agreement on the liability for breach of contract,and the enforceability of the agreement depends on the support of contract theory,so when a party violates the agreement,it should bear the liability for breach of contract rather than tort liability.