Research On The Balance Mechanism Of Property Rights Of Divorced Spouse In China From The Perspective Of Gender

Modern society enters an era that no-fault divorce doctrine prevails.Although many countries have made certain achievements in legislation and judicature in realizing the freedom of divorce and the fair sharing of adverse economic consequences arising from divorce,they are still facing problems such as poverty of divorced women,insufficient protection of underaged children's interests,distribution imbalance of relief responsibilities of weak parties in divorce and so on.According to theoretical research and empirical investigation by many Chinese scholars,similar problems also exsit in China.Based on feminism theory and gender analysis,this paper conducts a gender review on the structure of the balance mechanism of property rights and interests of divorced couples in China and gives advices on relevant legislative improvements.Following two problems are to be solved in the research: one is about gender blind spots in the system of the balance of property rights and interests between spouses in China from a gender perspective;the other is the legislative perfection of the system of the balance of property rights and interests of divorced spouse.The research on the system of the balance mechanism of property rights and interests of divorced spouse in China focuses on the definition of the scope of divisible marital property of divorced spouse and the principle of just distribution of divorced spouse' marital property,system amendments of financial compensation and financial assistance for divorced spouse.Not including the introduction,this paper is divided into five chapters,in a total of about 180,000 words.Introduction is about the background and significance of the paper,research status,research methods,the innovation and the limitation of the research.Chapter ? makes a theoretical study on the balance mechanism of property rights and interests of divorced spouse from a gender perspective.In order to further study the balance mechanism of property rights and interests of divorced spouse,this paper begins with a review of the main viewpoints of feminist theories on gender and main gender analysis methods.This paper summarizes the advantages as well as disadvantages of the thoughts of various schools,underlying a theoretical basis for the specific system of this paper.Then,it summarizes the general theory about the balance mechanism of property rights and interests of divorced spouse,and clarifies the significance of applying gender analysis to the study of the balance mechanism of property rights and interests of divorced spouse.Chapter ? studies husband and wife's subject status and family division based on gender theory.By focusing on spouse relationship,it studies three hot issues mainly concerned by current feminist theory schools: the subject status of spouse,the pattern of division of labor in the family,and the methods of equality and difference protection.First,it is necessary to use feminist theory of partnership marriage model o construct equal relationship between spouses.Second,through analysis and criticism of the gender division of labor in families,it is proposed to break the imbalance between rights and obligations of divorced spouse by equal division of household work and its compensation.Third,by re-evaluating the feminist views on equality between men and women,the equality principle between men and women should be applied to the construction of the property equity mechanism of divorced spouse theoretically as well an practically.Chapter ? examines the scope regulation of legal marital property in China from the gender perspective.This chapter investigates the type of joint property system of spouse established since the founding of the People's Republic of China and the corresponding legislative evolution of the scope of marital property,and reevaluates the rules of the limits of the scope of marital property in China from gender perspective.For gender blind spots existed in the classification of common property types and individual property types set in specific provisions under the current legislation and judicial interpretation in China,the paper puts forward following two proposals: first,it is highly recommended to adopt broad concept of contribution in the field of marriage and family,including direct contribution and indirect contribution,to recognize the contribution value of housework,and include the contribution rules in rule system of defining the scope of marital property.Second,with the application of the rules of defining the scope of marital property,it advocates the modification of the ownership of the two kinds of property in the current marriage legislation of our country.Details of are as follows: first,the income generated by one spouse's personal property after marriage should be recognized as the spouse's common property;Second,property inherited or donated by one of the spouses should be placed within the scope of the personal property of the spouse.And more should be paid to the spouse who takes more care of the elderly through fair division of husband and wife's common property or financial compensation for divorce on the basis of compensation principle of housework contribution.Chapter ? explores the principle of division of common property between divorced couples in China from gender perspective.This chapter first introduces about the current divorce property division principles in legislation in China,and analyzes empirical survey data of the judicial application of divorce property division principle.It then examines the gender blind spots of the principle of equal division of property in divorce in China from gender perspective.With the help of extraterritorial judicial practical experience of the principle of fairness and the theory of the application of the principle of fairness in the family field by feminist theory,it proposes that the principle system of divorce property division in our country should be governed by the principle of fairness;the marital property should be divided equally or differently by abiding by particular rules of fair division including equality,contribution and needs.Based on above discussion,the thesis gives legislative suggestions on the basic principles of property division of between divorced spouses: when divorced,the marital property of spouse is dealt with upon the agreement achieved by both parties.When the agreement fails,the people's court shall handle the property fairly by taking particular circumstances of the property into account,according to the equality principle between men and women,the compensation principle of housework contribution,the principle of protecting the interests of the weak and the principle of Care-free.Chapter ? explores the divorce economic compensation system and divorce economic assistance system in China from gender perspective.After a brief introduction to legislative development and contents of both the divorce economic compensation system and divorce economic assistance system in China,the chapter conducts an empirical investigation and gender analysis on the judicial application of the two systems.By learning from foreign countries on their advanced legislation through a comparative study on specific contents of their relevant systems,the author clarifies the relief function and scope of the two systems respectively,from the viewpoint of the systematic structure of the balance mechanism of property rights and interests of divorced spouses in our own country.Specific legislative suggestions on the divorce economic compensation system and divorce economic assistance system in China are as follows: First,the system of financial compensation for divorce is applicable to the situation that when one party who contributes more in raising children,caring for the elderly,supporting or assisting the other party to study or work but is not properly compensated in divorce due to no common property or very little common property.Second,the applicable conditions of the divorce financial assistance system are modified as: one party's life is relatively difficult at the time of divorce;the other party is capable of providing financial assistance;the assistance standard is to meet the reasonable living needs of that party.