A Study Of Marital Dispute Property In Judicial Interpretation Of Marriage Law

With the development of society and the gradual diversification of wealth,the provisions on marital property in the marriage law can no longer meet the needs of judicial practice.The supreme people's court has issued three interpretations on the application of the marriage law of the People's Republic of China on several issues of>,further clarifying the scope of marital property,and making provisions on the ownership of property that is controversial in practice.However,due to the relationship between marital property and property law,contract law,company law and other laws,there are conflicts between marital property and property identification rules of marriage law.Because the property relationship between husband and wife is based on the premise of marriage,based on the "fact first" characteristics,the application of property rules between husband and wife should be different from the general property law rules.However,the judicial interpretation does not consider the particularity of marriage and family.On the issue of income of personal property before marriage,the judicial interpretation upholds the traditional civil law ideas such as "fruits follow the original thing".On the issue of equity,the judicial interpretation does not clarify whether equity itself can be regarded as the common property of husband and wife;On the income of intellectual property,judicial interpretation ignores the cooperation between husband and wife and excludes the expected interest of intellectual property from the common property.On the pension issue,the judicial interpretation also fails to protect the legitimate rights and interests of the spouse who is engaged in housework,and the retirement condition limits the division of the pension rights and interests of the social pooling account of the spouse who is engaged in work.The judicial interpretation directly applies the provisions of the property law,the contract law and other laws,which leads to the finding of the disputed property that is against the substantial fairness and has a certain impact on the stability of marriage and family.This practice of blindly promoting the principles of market economy and highlighting individual rights disintegrates the family affection,ethics and morality advocated by marriage and family to a certain extent,and is not conducive to the play of family functions.Therefore,in view of the identity characteristics of marital property,this paper believes that,on the issue of ownership of mortgage housing,as long as after marriage the husband and wife use common property to repay more than a certain proportion,the property is jointly owned by the husband and wife;After marriage the husbandand wife joint loan has not reached a certain proportion,but the marriage as the only residential housing over a certain period of time,presumed as the husband and wife common property;On the issue of house purchase funded by the parents,if the property right of the house purchased by the parents in full amount after marriage is registered under the name of the children of the investor,the real estate shall be the personal property of the children of the investor;For the immovable property jointly purchased by the parents of both parties,the property shall be jointly owned by the husband and wife,no matter who is the property right registrant;In terms of the income of personal property,the concepts of fruits,investment income and appreciation should be abandoned.As for the issue of the equity of limited liability companies,in the case of divorce,if the husband and wife hold shares in the limited liability company in the name of one party with their common property,they can be divided as common property.However,if the spouse of the non-nominal party is qualified as a shareholder,he or she shall abide by the relevant provisions of the company law.With regard to the expected benefits of intellectual property rights,as long as the creation of the intellectual product has been completed during the period of the existence of the marriage,the interests(including the expected interests)generated by the intellectual product shall be deemed to be jointly owned by the husband and wife,whether the rights are granted or not.As for the pension issue,the accrued pension,the right to expect pension and the expected benefits of pension of the husband and wife should be Shared by the husband and wife during the survival period of the marriage,and should not be limited to the conditions of getting pension set according to the pension insurance.