The Elementary Analysis Of The Judicial Interpretation(Ⅲ)of The Marriage Law Of China

<The supreme people’s court on applicable "marriage law of the People’s Republic of China> the explanation of some issues (3)--After the whole society for advice and the supreme people’s court of the judicial committee through discussion, which was announced implementation In August2011,13. As every time marriage law and judicial interpretation of the marriage law promulgated, Interpretation of marriage law "(three)" aroused extensive discussion since the enactment, in which it has got the realization of the real right law of docking, established paternity identification of presumption and his wife’s reproductive dominance and highlight the progress of law. However, there are still some regrets, such as not to straighten out the relationship between real right and creditor’s right, the marriage registration defective as well as some provisions too abstract, principle, easy to operate. There are still many omissions on the relevant operation regulations of marital property in Interpretation of marriage law "(three)"---Different Chinese reason, contrary to marriage ethics, deviate from the constitution of women’s rights protection regulations and the spirit, conflict of marriage on the marital property law, no bona fide transferee equity property and other rights and interests of spouse and not conducive to the stability of marriage and family and personal property protection. There are many scholars hold a positive view to Interpretation of marriage law "(three)" as well as the ones against it. To the provisions on property in Interpretation of marriage law "(three)", the scholars holding the positive view think that the family of common property can be weakened, personal property has been displayed, which is in line with the investor who benefit from the law of market economy, modern market economy concept. Looking from some kind of angle, Interpretation of marriage law "(three)" on the real right and real right common rules agree with the relevant provisions of the "contract law" and the "property law". On the real estate gift provisions of civil law, it embodies the principle of autonomy of will. Immovable property that one of the spouses to loan buy a house and marriage common owing on the loan, according to the relativity principle of the contract on the registration of property rights on one side of the scope of compensation, covers the payment which both sides after marriage commonly own on and property value added relatively real estate, which is also very fair. Form the point of my view, Interpretation of marriage law "(three)" has its positive sides, but it has also a clear conflict to reason and jurisprudence. In addition, we should never deviate from the reason and ethics when we experience subject of judicial intervention and the legal regulation on the relationship of civil society, especially the traditional ethics has been deeply influenced by factors of marriage and family life, otherwise, justice social acceptance will be greatly reduced, the judicial practical effect will not be produced and the Judicial authority will gradually decrease. Justice shall not violate the law and also do not interfere with the legal principle. Contrary to the legal judicial activities must be unconstitutional, which will destroy the rule of law constitutional basis.