论身份关系协议对民法典合同编的参照适用

婚姻、收养、监护等有关身份关系的协议存在参照适用民法典合同编的空间。身份关系协议的性质是身份法律行为及相应身份权利义务关系所展现出的身份共同体特点,也是参照适用时对被引用法条限制或者修正变通的判断标准和解释依归。身份关系协议的性质具体包括鼓励缔结婚姻、维护夫妻等身份关系和谐安定、实现夫妻乃至家庭共同利益、养老育幼、未成年子女利益最大化等价值追求。应该区分不同类型的身份关系协议、区分同一类型身份关系协议中不同内容约款、区分身份关系协议的内部效力与外部效力,分别讨论参照适用的空间。不能脱离身份关系协议的整体来看待忠诚协议、离婚财产分割协议或者夫妻财产约定中的所谓赠与条款这个部分,身份关系协议原则上应该作为一个整体,且形成继续性民事法律关系。

Reference Application of Contract Section of Civil Code on Agreements Concerning Personal Relationships

Agreements concerning personal relationships such as marriage, adoption and guardianship, etc, may refer to Contract Section of Civil Code. The nature of agreements concerning personal relationships is the identity community characteristic which can be reflected by identity legal act and corresponding identity rights and obligations. It is also the judgment criterion and interpretation basis of restricting or amending the cited articles during reference application. The nature of the agreements concerning personal relationships includes the pursuit of encouraging marriage, maintaining the harmony and stability of the identity relationship between husband and wife, realizing the common interests of husband and wife and even the family, providing for the aged and raising minor children, and best interests of the children. We should distinguish different types of agreements concerning personal relationships, the different contents of the same agreements concerning personal relationships, the internal and external effects of agreements concerning personal relationships, so as to discuss the space of reference application relatively. The so-called gift clause in loyalty agreement, divorce property division settlement or marital property agreement can not be separated from thewhole of agreements concerning personal relationships. Agreements concerning personal relationships should in principle be regarded as a whole, which forms continuing civil legal relationship.