| Different from the commodity relationship characterized by compensation of equal value and adjusted by the property law,the marital property relationship has ethicality.Therefore,the market trading rules cannot simply apply to the division of divorce property.It is undeniable that the divorce rate in the current society continuously rises,and the composition of wealth is increasingly complicated and diversified.As the ethicality of marital property relationship is ignored legally,the interests of the parties concerned are impaired,and new conflicts and social hazards are generated.Researching the division of divorce property is not merely aimed to promote the improvement of legislation.The more important significance lies in protecting the individual interests of divorce parties,and facilitating the overall social harmony.The divorce property division system includes the division of community property and the sharing and settlement of common debt of husband and wife in the divorce.This is an important part of marriage and family system and the most disputed issue between both parties in the divorce lawsuit.Based on these focuses and difficult problems in reality,the Supreme People’s Court constantly launches the judicial interpretations.However,the existing disputes cannot be effectively settled.Meanwhile,many theoretical differences are newly added.Hence,it is important and urgent to deeply research and systematically comb the divorce property division system.In particular,emphasizing the importance of ethicality in the divorce property division system has the theoretical research and practical application values.This research tries to solve these issues.The research framework of this paper mainly includes introduction and main body(the main body is divided into six chapters).Chapter I focuses on the essential issues of the system of divorce division of property.The full thesis study is conducted on the basis of clarifying the fundamental concept and system.In the academic circles,the divorce division of property is defined both in a narrow sense and in a broad sense.In the thesis,the divorce relief system in a broad sense is not a part of divorce property division,but a remedial measure when actual damage is caused by improper handling and uneven division.Therefore,the thesis adopts the theory in a narrow sense in which divorce division of property system is composed of division of community property and settlement of common debt of husband and wife.In this paper,by the comparative research method,the divorce property division system of the countries under the continental law system and Anglo-American law system is combed respectively.According to the comparative research,the following findings are achieved: on the one hand,there are significant differences in the legislative structure and specific provisions between these two law systems.On the other hand,these two law systems emphasize autonomy of will,implementation of equality of men and women,and protection of trading safety and other principles.This has important reference significances for improvement of legislation of China’s divorce property division system.Looking back the legislative evolution of China’s divorce property division system,there are changes in three periods broadly,namely,deficiency of divorce property division system in the ancient times,emergence of divorce property division system in the period of the Republic of China,and specific provisions of three Marriage Laws and relevant judicial interpretations for the divorce property division system.The further improvement of legislation is constantly boosted.Chapter II investigates the ethicality of divorce property division system design.The ethicality principle is considered in such aspects as marriage law,marital property division principle and marital property division system.Firstly,the ethicality of marriage law decides the difference between property rules of marriage law and market trading rules.The property rules of marriage law adjust the primary social relationship,stress the collectivism and altruistic dedication,and aim to maintain the stability of marriage and family relationship and protect the interests of disadvantaged groups.However,the market trading rules regulate the secondary social relationship,stress the individualism and egoism and aim to facilitate the property circulation and appreciation.This research stresses the obvious differences between marital property rules and market trading rules in such aspects as nature of adjusted object,idea of legislation,foundation of ethics,function of society,and degree of national public power interference.Secondly,based on the gradually deeper cognition of “ethicality”,the legislation of China’s divorce property division principle is changed accordingly.China’s Marriage Law constantly adjusted and supplemented the divorce property division principle from 1950 to 2001.The system mainly includes two principles: 1)ethicality principle: equal division,consider the interests of children and the wife’s side,and consider the non-fault party;2)property principle: promissory prior to statutory principle,favorable for production and convenient for life principle,and the like.In the specific principle ethicality consideration,the property principle and ethicality principle are considered.The former mainly refers to “promissory prior to statutory principle,and favorable for production and convenient for life principle”;the latter mainly refers to “equal division principle,consider the interests of children and the wife’s side principle,and consider the non-fault party principle”.Thirdly,for the ethicality consideration at the system level,main factors include: fully consider the value of housework and protect the interests of disadvantaged groups.Chapter III discusses the confirmation and division of community property.The precondition for community property division is determining the scope of community property.At first,the non-community property should be excluded,including exclusion of common property of family,exclusion of personal property of husband and wife and exclusion of other property: property of the minors and other members of the family.After the exclusion,the determined community property has two types: one is the general common property,which mainly refers to bank savings deposit,and other financial management products,transportation means property,household appliance property,digital furniture property,production tool property,jewelry property and other categories;the other is the special community property,which mainly includes house property,stock equity,degree,title and qualification and other human capital,intellectual property and family insurance interests.This research has expounded the ownership and division of the abovementioned property respectively.Section 3 in this chapter has expounded the valuation mode and division method of community property.The valuation mode mainly includes negotiated valuation and asset appraisal.For the specific division method,on the basis of using the legislation of Germany,Japan and Taiwan Province of China for reference,the agreement division,material object division,sale division,discount division,bidding division and other division methods are expounded.Chapter IV directly faces the problems in the ownership and division of community property,namely,three greatly disputed problems in theory and practice:1)ownership and division of postnuptial earnings of personal property of one side.This research has compared relevant extraterritorial regulations and China’s academic viewpoints,and evaluated and analyzed in detail several theories,including contribution theory,fruits subject to original theory,concerted effort theory,and marital community of shared future theory,about judging the ownership of postnuptial earnings of personal property of one side,and concretely analyzed the ownership and division of several typical personal property earnings in the practice.2)Ownership and division of property right of house bought by the parents for children.This research points out the defects of Article 7,Judicial Interpretation(3)of Marriage Law.It is specified that the parents buying the house for children is gift.Besides,the type of house bought by the parents for children is combed and the to-be-considered factors and judgment standards for the ownership of house bought by the parents for children are further expounded.In other words,based on the contribution time and real estate registration,the real intention of gift by parents is judged.Meanwhile,based on the property rules of marriage law and civil law,the comprehensive judgment is made.3)Ownership and division of property right of mortgage house of one side before marriage.This research dialectically considers progress and shortcomings of Article 10,Judicial Interpretation(3)of Marriage Law.The considerations for judging the ownership of property right of premarital mortgage house are stressed,including ethicality of marriage law,matrimonial property system,real estate registration,down payment and repayment.The conclusion that the premarital mortgage house belongs to a mixture of community property and personal property of husband and wife is reached.On that basis,the appreciation ownership and compensation of premarital mortgage house is expounded.Chapter V pays close attention to the affirmation system of common debt of husband and wife in the divorce.Compared with relevant legislative regulations of France,Japan,Switzerland and other countries,this research points out the legislative defects of China’s current laws about common debt of husband and wife,and they are mainly embodied in such aspects as rigid legislation,old-fashioned concept,disorderly legal regulation,and too simple content regulations.The affirmation standard of common debt of husband and wife undergoes the evolution from purpose standard,time presumption standard,and purpose and time presumption combined standard,consensual standard,and daily housework agency standard.Based on the particularity of common debt of husband and wife,this research emphasizes that the legal basis for debt affirmation should be whether the money is borrowed for the common interests of husband and wife.At the same time,the specific scope of common debt of husband and wife is combed,including consensual debt,daily housework debt,common life debt,common production and operation debt and other common debts of husband and wife.Finally,the establishment of affirmation standard of common debt of husband and wife is raised.It is emphasized that establishing the affirmation standard of common debt of husband and wife should consider the matrimonial property system,relativity of debt,spousal relationship and balance of interests between the creditor and non-money borrowing spouse.Whether the debt is used for the common life of husband and wife should be the logical starting point for judging the common debt of husband and wife.Chapter VI further discusses the improvement of divorce property division system,and expounds the improvement of legislation at the principle and system levels.At the principle level,due to the excessive application of equal division principle,fairness cannot be really embodied.Therefore,the fairness principle should be established for China’s divorce property division system.When the fairness principle is applied,the interests of minor children,demand of husband and wife after divorce,contribution of husband and wife to the family,marriage duration and other factors should be considered.The fairness principle should be applied in coordination with other principles of divorce property division and play the supplement and correction roles.At the system level,the system improvement of three problems in the division of community property is analyzed at first.1)Regarding the concerted effort theory as the theoretical basis for judging the postnuptial earnings ownership of personal property is claimed,and the postnuptial earnings of personal property are scientifically defined.2)The rules for ownership of property right of house bought by the parents for children are specified.In other words,before marriage and after marriage are distinguished and different rules are applied respectively to determine the ownership of house property right.For the property before marriage,the property rules of the Real Right Law are applied.For the property after marriage,the property rules of the Marriage Law are applied.3)Under the premise that the community property and personal property of husband and wife in the premarital mortgage house are stressed,based on various factors,the ownership of property right of premarital mortgage house is judged.Secondly,with regard to improvement of legislation of settlement system of common debt of husband and wife,this research claims that the common debt of husband and wife includes joint debt and common debt.The consensual debt of husband and wife and daily housework agency debt should belong to the joint debt,and husband and wife bear the joint settlement responsibility.However,the debt used for common life and common production and operation beyond the daily housework belongs to the common debt,and such debt should be settled by the community property and personal property of the party who borrows the money,and the party who does not borrow the money does not bear the unlimited joint liability.After the common debt of husband and wife is externally settled,the mutual right of recourse may exist inside the marital relationship.In the comparative horizon,by using the extraterritorial advanced legislative experience for reference,based on China’s judicial practice,this paper analyzes the greatly disputed hotspot and focus problems in the divorce property division.At the principle and system levels,this paper carries out the theoretical discussion,especially highlights the ethicality in the marital property relationship,focuses on the division of community property and the settlement of common debt of husband and wife,raises the reasonable and feasible measures,and provides the intellectual support for solving the bewilderment in the judicial practice to some extent. |
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