| Summary: | 碩士 === 國立成功大學 === 法律學系 === 101 === Marriage as one form of identity contract, in contrast to those commercial contracts with a legal nature of “trade”, and based on a reason not violating public policy and morality, it is prohibited to be traded by laws. This study intends to challenge the compensability of the rights and obligations in marriage under current civil law, and proposes that dissolution of a marriage shall be compensated to recover the loss of the party. However, most of the courts usually limit the freedom of contract and justified for fairness and public interest, due to the non-equivalence of contracting and bargaining of the party.
Nevertheless, shall the fairness of a marriage contract be mandated by the court upon the law and interfered personal relationship between the parties by neglecting the right of self-determination? This study concludes the law today regarding the rights and obligation under marriage, such as duty of maintenance, basis of claiming alimony, etc., has paced toward property laws. As to the duty of chastity not expressly provided by laws has as well, paced toward the jurisprudence of non-performance of obligation through the discussion of the sexual independence and decriminalization of adultery in order to compensate the party’s prejudice from his/her spouse and the adulterer. The legal good of binding the institute of marriage through contracts is to allow the parties to contract independently and settle under the regulatory framework for their intimate relationship in order to achieve fairness of contracting by the right of self-determination. Comparing with the review and examination by the court, it may fall into unscrupulousness by judges’ discretional evaluation and discretionary power; in addition, it may fall into the pattern of provisional formality gender equality. Patriarchy hence dominates and virtually controls the system under the guise of legal enforcement. Therefore, it shall return to autonomy of private law and allow parties’ self-determination.
As the relationship of identities is gradually transformed into specific property orders, the essence of marriage emphasizes more of the character of parties and respects the true meaning determined by the parties comparing with other contracts. Also more employment agreements and other agreements are purposed of long-term, continuity and sustainability. How the law today shall response accordingly to the needs of the protection of this kind of identity contracts and be embodied to the practice of the courts, a prenuptial agreement is one kind of prototype for reference. For the more diverse personal relationship, such as partnership and common life of parties, the trust relationship is no less than marriage, as well as, the highly correlation dependence on properties are getting closely by the highly developed rights and obligations. The law shall not make judgment by only heterosexual and monogamy marriage system, but shall provide a complete protection depending on the characteristics and needs of all kinds of intimate relationship under Family and Succession Law.
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