Research On Establishment Of Special Matrimonial Regime In China

In China’s present Marriage Law, communal estate regime is the chapter of legal property regime.Although it manifests traditional family culture of our country and conforms to the basicethics of Marriage Law, the application of such property system is based on their relationship in usualstate, ignores coordinating the relations between marital properties under abnormal conditions. As weknow, a scientific and standardized legal system must be fastened to the needs of reality andclosely follow the footsteps of the times so as to avoid increased disputes due to legal lag.Therefore, establishing special matrimonial regime is not only to cover various changes in the marriage,but also to deal with problems effectively encountered in China’s judicial practice.Based on the above reasons, the paper makes comparative study on the case, dissects thenecessity of constructing this system by using value analysis method, and investigates relativerules in other countries and regions through comparative analysis method. At the same time,from considering the realities in China and combining with China’s judicial practice, I will putforward legislative suggestions theoretically which is meaningful of theory and practice forbuilding a harmonious family. What derived from this perspective hopes to play an active roleon legislative.Apart from the introduction and conclusion, this paper, more than25,000words, isdivided to four parts. The first part is the problem raised. It describes two typical cases anddiscusses controversial issues in practice from the division of community property systembetween spouses in marriage. Finally, combining with the Interpretation (Ⅲ) of the MarriageLaw, this is lacking of systematic regime support, to achieve the necessity of establishingspecial matrimonial regime.The second part is the basic theory of the special matrimonial regime. It introduces thecharacteristics of the special matrimonial regime, type and value orientation and so on. First,the very concept, the characteristics and type are described. Then explore the necessity ofsetting up this system that not only realize family protective function, but also promote socialequity and harmony. Finally, from the realization of the sexes, maintenance fairness andjustice angle to achieve the value tropism of establishment of the special matrimonial system.The third part is the special matrimonial regime of extraterritorial legislation. First,introducing the related legislation of the Switzerland, Italy, and Taiwan in detail, Then fromthe legislative model, legislative structure, the application of the main, the reason for the termination and legal effectiveness for five aspects more comprehensive assessment andweigh the pros and cons, whichever is based on the actual situation in our country illustratelegal reference for our country.The fourth part is the special matrimonial regime of the legislation plan. There are fourareas discussed in this section. It contains special matrimonial regime, mainly from the legalsituation, the application of the main, applicable procedures and methods and effectivenessfor the recovery. Building this system is necessary to focus on legislative problems in practice,but also can fill our legislative gaps. Establish a healthy institutional mechanism to perfectmarriage legislation and maintain social stability.