| The Interpretation (III) of the Supreme People’s Court of Several Issues on theApplication of the Marriage Law of the People’s Republic of China (hereinafterreferred to as Interpretation (III) of Marriage Law)was adopted on July4,2011andcame into force on August13,2011. The interpretation has aroused wide concernand controversy since the introduction, especially for the new regulations onproperty of the couples. All these new regulations bring clear legal basis for theproperty dispute of divorce and increase the work efficiency of judge practice.Meanwhile, it has also brought new changes to the marital property system andbecome a hot social issue. In this thesis, analysis and research is made on thesechanges based on Interpretation (III) of Marriage Law. Marital property systemrefers to the legal system that is about the ownership, administration, usage, income,disposition of pre-marital and postnuptial properties and debt settlement and also theproperty liquidation when dissolving the marriage. As an important property systemin marriage and family relations, marital property system determines the normalrunning of marriage and family life and also is the effective protection for therealization of the property rights and obligations and security social exchange. Greatchanges on marital property system have been made in Marriage Law of the People’sRepublic of China in1950, Marriage Law of the People’s Republic of China(hereinafter referred to Marriage Law) in1980and Amendment to Marriage Law ofthe People’s Republic of China1(hereinafter referred to Amendment to MarriageLaw) in2001, which can be regarded as a kind of progress in a sense. However,compared with the western countries, the marital property system in our country islack of systematization and its incomplete content needs further supplement andimprovement. Many contents presented in Interpretation (III) of Marriage Law are new and thus provide new perspectives to the marital property system in our country.Moreover, some contents change the regulation of Marriage Law on marital propertysystem. It is worth discussing whether it suits our national conditions and whether itcan be good value guidance.In this thesis, comparative analysis, case explanation and analysis on thespecific legal provision are applied. The changes on the framework and the specificregulations of marital property system are analyzed through studying the specificregulations on marital property system in the Interpretation (III) of Marriage Law,posing that the original ethicality and status should be remained when making lawson marital property system.This thesis includes three parts besides introduction and conclusion.In the introduction part, research questions, research background and researchmethodology and the framework of the thesis are elaborated.In the first part, the legislation of marital property system in our country and theconcrete representation of the new changes of the marital property system caused bythe Interpretation (III) of Marriage Law are summarized. Firstly, the specificcondition before the enforcement of Interpretation (III) of Marriage Law iselaborated. It refers to the fact that marital property system in our country consists oflegal property system, contractual property system and individual property systemand the matrimonial property system and also division of community property whendivorcing. Secondly, the performance of the changes of marital property system isintroduced through analyzing the case of marital property dispute in practice. Thefirst part is about the division of marital community property. In this part, the newregulations on the division of marital community property are expounded and theparts that need to be improved are supplied. Then, the range of individual property isexpanded and the attribution rule of pre-marital property and the postnuptial benefitsis also changed, which is presented by the inclusion of fructus and unearnedincrement in the individual property. The irrationality of such regulation iselaborated by the author, which needs further discussion. At last, the new regulationson the marital property ownership are determined. The attribution rule of real estategiven by parents and the real estate whose down payment is paid by one party is reestablished in Interpretation (III) of Marriage Law.In the second part, the changes of marital property system in Interpretation (III)of Marriage Law are evaluated. Firstly, the status of marital property system isweakened, which is represented in the ignorance of particularity of ethicality inmarital relation and the bias of individualism from community value in marriage andfamily advocated by Marriage Law. Being different from other social relations,marital relation is actually a kind of ethical relationship and is restrained byconfucian ethic. However, the essential ethicality of marriage is weakened in theregulations of marital property system in Interpretation (III) of Marriage Law, whichis against the traditional Chinese ideas of marriage and family. Furthermore,community interest of marriage and family is always emphasized and spirit ofcommunity property is adhered to in the Marriage and Family Law. However, thelegitimate right of one partner is mainly emphasized and particularly the protectionof female right is neglected in this interpretation. Secondly, the nature of contract ofmarital property system is strengthened, which is presented by the excessiveimplantation of regulations in Property Law and the lacking of operability of thearticles. The property rules in the Real Right Law of the People s Republic of China(hereinafter referred to Real Right Law) and Contract Law of the People s Republicof China (hereinafter referred to Contract Law are implanted in the regulations ofmarital property system in Interpretation (III) of Marriage Law. However, theproperty relationship in the domain of marriage and family is different from that inother domains. It has the specific characteristics and is not the simple exchange ofmaterial interests. Besides, the provisions have strong principles and pose newchallenges to practice.In the third part, the choice for the legislation of marital property system in ourcountry is introduced. Firstly, sticking to the equality of property rights andobligations of the both sides is a necessary requirement for equality as the ethicalconcept and also the requirement of the principle of equality between men andwomen. Many nations in the modern society regulate that the husband and wife havethe equal ownership on all the properties, including possession right, right of use,right to yields and right of disposing. Moreover, many specialized community property management systems are established to manage the community propertyand individual property. Secondly, the lawful property rights of the husband and wifeand the third party should be protected, which is in accordance with the legislationrequirements of taking the individual interests and social interest into accounts. Dueto the frequent market transactions, contract plays a more and more important role.The moral principle of justice is included in it. Therefore, the rights and obligationsof the husband and wife and the third party should be balanced and legal andreasonable protections should be given, which is the necessary requirement of ethicalconcept of justice by Aristotle. Finally, protecting the rights of the weak party inmarriage and family is the requirement of marriage and family ethics. Typically, theweak party in the marriage and family is the wife, therefore, admitting the value ofhousework and providing living security to the weak party when divorcing is thevalue orientation that should be pursued in the legislation of marital property systemin the future.In the conclusion part, it is pointed out that for the marital property system, thebasic characteristic of ethicality of marriage and family should be respected and thetraditional Chinese culture should be inherited to guarantee the marriage and familyin a better way as the community interest and to stabilize the harmoniousdevelopment of marriage and family. |
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