On The Family

Family ownership is a legal relation of joint ownership that all or parts of family members, during the existence of family relationship, use their joint property or personal property for family in accordance with the law or contract. In a similar social and economic context, the clan members’ ownership of clan property in traditional China is similar to the group members’ ownership of group property in Germanic law; family members’ ownership of dead ones’ property in traditional China is similar to the community members’ ownership of community property in Germanic law. Family ownership, which has evolved from the family property system in traditional China, diminishes as the decrease of joint family, but would not disappear in a short time. It is necessary to attach great importance to the research on family ownership and establish family ownership system.Family relationship and joint ownership relationship are two perquisites of forming family ownership. When determining the family owners, besides the contribution to the formation of family joint property, family members should also have the intention to become family owners and get permission for other members. Generally speaking, Juveniles and psychiatric patients, who cannot identify their behavior, can’t be family owners. The object of family ownership(the scope of family joint property) can be determined according to the source and the nature of the property.In the internal relations of family ownership, unless agreed, family owners’ possessing, using, benefiting of family joint property should be co-exercised by all of family owners jointly in accordance with the family producing and living needs; family owners have the right and obligation to save and simply repair family joint property; disposing or complicated repairing family joint property must receive general approval of every family owner; family owners undertake the cost and encumbrance caused by family joint property. In the external relations of family ownership, family owners entitle joint rights and assume joint debt.Family ownership could be terminated because of dividing up family, divorce, and the death of family owners, resulting in dividing family joint property. Dividing family joint property has traditional way and modern way. Merits of traditional way should be kept and it drawbacks should be abandon. There are two way in the modern way: agreement and judgment. The judgment of dividing family joint property should follow both the principles of interest and fairness, there are three measures: dividing up directly, dividing up with price, divide up with price transformation.The reasons why China has not legitimated family ownership system are: defects in transplantation of law in the late Qing dynasty, insufficient importance attached to family ownership system, and incomplete family property system. I suggest establishing and improving family ownership system from two aspects: family property system and joint ownership system.