Research On The Determination Of Matrimonial Community Property

With the rapid development of China’s socialist market economy and the continuousimprovement of people’s living standard, the status of the matrimonial property showed atrend of increasing complexity and diversity. As the diversified and complicated maritalproperty, the division of marital property in the divorce proceedings between parties hasbecome the most controversial part and the definition of the scope of matrimonial communityproperty would become the focal point. Although our country in2001amended the1980Marriage Act and the Supreme People’s Court has issued three judicial interpretation about theapplication of the Marriage Act, the law as a reflection of social life, relative to that in thereal life of the complicated situation, there still will be a lag or vacuum. General rules foridentification of areas such as matrimonial property not having a provision do not listattribution of income after marriage is unknown, leading to confusion in judicial practice, isto show the debate over the attribution of some special property. For example: intellectualproperty expectation interests, equity, human capital, etc.The basic idea of this article is for the study of the controversial issues and relevantjudicial explanations in China’s judicial practice and real lives, focusing on the maritalproperty vested in a few special cases, in order to provide some immature thinking directionof the judicial practice of our country and render all its own for the future formulation of thefamily law section of the civil code.The article using multiple research methods of historical analysis, empirical analysis,comparative analysis and economic analysis of law is divided into five chapters, apart fromthe introduction and closing remarks.The first part is the preface.It briefly introduces the background and the significance of theselected topic and the status of domestic and foreign research which laid a foundation forlater discussion.The second chapter is the basic theory part. First of all, the concept of matrimonial community property, characteristics and value systems, and other basic theories areintroduced. Then it describes separately three national overview of the scope of maritalcommunity property in Germany, France and the United States. Through the analysis of thecurrent legislation in the above three countries,it provides a comparison on the basis of thedeficiency of the legislation in our country for the following research.The third chapter mainly discusses the legislative changes of the matrimonial communityproperty in China since the founding and points out the current problems identified in ourcountry law to the matrimonial community property, mainly including three aspects:protection individual property rights excessively on the legislation idea;being too rigid on thelegislation technology, lack of the consideration for the characteristics of marriage; lack ofunity rule on the cognizance of the joint property of husband and wife.The fourth chapter mainly studies on the improvement of the regulation of the maritalproperty. First of all it summarizes the basic concept and the general rules to the maritalproperty.Then it defines the scope of the constitution of the marital property, focus on humancapital, equity and the right to land contractual management which are covered by the issuesof the matrimonial property. Finally it analyses the ownership transfer rules of the maritalproperty.In the fifth chapter it deals with a few more controversial questions to the maritalproperty. Firstly, it analyzes several real estate whether which belongs to the marital propertyor not. Then it discusses if the intellectual property rights can look forward to the benefits ofthe marital property.Finally it discusses the attribution of property obtained during the periodof separation and puts forward the ideas for the improvement of the marital property in China.