Historical Changes And Mordern Reconstruction Of Family Property System In China

As an important component of family law,family property law has become a barometer of changes in times and social cultural transformation.From the cohabitation of the traditional society to the matrimonial property system in today's society,the law of family property in China has gone through a declining process.In this historical process,the family property law,which has lasted for thousands of years,has been gradually broken down by the specific background of the times and social concepts.The description of this process necessarily needs to go beyond the system itself and carry out dynamic research.Therefore,the performance of family property system in different historical stages needs to be elaborated in detail and comprehensively from its institutional background,practical state and the relationship with other elements of the social system.In thousands of years of traditional society,the specific content of family property system in different dynasties is not identical.However,due to the influence of ethical,identity,filial piety and political family culture,family property system also has a certain homogeneity,that is to say,it presents the life style and characteristics of "cohabitation and common wealth".The static style of "cohabitation and common wealth" is mainly reflected in the ownership of family property,while the dynamic style is embodied in inheritance and division.Because our traditional society has no right to breed soil,it can not directly apply modern legal concepts,and can only be described and explained in a specific historical background and specific historical culture.The family legislation in the Republic of China carried out a thorough transformation of the traditional family property system.The direction of the transformation was the modernization of the family property system.During the period of the Republic of China,the field of family law opened a journey of value of modern legal culture.The process of reform was full of struggles and compromises between modern legal culture and traditional legal culture.On the one hand,it absorbs the cultural values of modern rationality and equality in the West and establishes the property system of husband and wife.On the other hand,it also fully respected the traditional legal culture and ideas and retained the family system to a certain extent.The characteristics of family property practice in the period of the Republic of China are close to those in the traditional society.The marital property system established by legislation has no obvious signs in the real lifeof the people.The conflict between family property legislation and practice reflects the characteristics of the legal transition period.The implementation of land reform,collective economic system and household contract responsibility system plays an important role in the content of the Marriage Law of 1950 and the Marriage Law of1980.Influenced by the family planning policy,the family structure of Chinese society has also undergone significant changes.The family size is gradually shrinking,the family structure is simpler,and the real family property relationship presents new characteristics.The current Marriage Law negates the family property system and establishes the marital property system with personal property rights as the core.Especially with the successive promulgation of the three Interpretations of Marriage Law of the Supreme People's Court,the traditional Chinese family property legal system has been abandoned,which is reflected in the lack of family culture at the level of legal culture and highlights the personal value.Through the investigation of the contemporary Chinese people's concept of family property,it is found that there is a certain tension between the people's cognitive concept of family property and marital property and the legislative concept.The family culture in family property legislation is lacking.The value of contemporary family property legislation should respond to the public's concept and family culture in judicial practice.Although the family property system is declining gradually,but the family culture has always existed.The legislation of marriage and family should attach importance to family.In terms of system,while insisting on and improving the property system of husband and wife,we should give the family common property system a place,and reconstruct the family property system from the source,formation,identification,division,responsibility bearing and other aspects of the family common property.