Analysis On The Attribution And Compensation Of Ownership Of Pre-marital Personal Mortgage Property

In the processing of the divorce case, premarital mortgage house is always thekey controversial affair, which is caused by the complexity of related laws and bigvalue of today’s house.However, the<Interpretation (III) of the Supreme People’sCourt of Several Issues on the Application of the Marriage Law of the People’sRepublic of China>published by the Supreme People’s Court does not bring solutionsto this problem.The laws for premarital mortgage house in its Article10havenarrow-range application, and do not clear the compensation.There still have no clearjudgment about the ownership affirmation and deal of value-added part of thepremarital mortgage house.Based on the existing laws and regulations, this paperintents to do a systematical analysis on the dealing opinions about premaritalmortgage house, thus to get some feasible solutions for this problem in judicialpractice.Taking the law relationship and disputing reasons about mortgage house beforemarriage as starting point, this paper thinks ownership judgment should do onelements like percentage of down payment, ownership registration content, andownership getting time.Based on the three elements, taking Article10as the core, thispaper does an analysis on the possible types of premarital mortgage house in practice,and gets the conclusion that personal ownership should meet both the tworequirements; one party paid down payment before marriage and registered holder of property is the one who paid the down payment.After sorting out the ownership ofpremarital mortgage house, the co-owned house should be divided according toprinciples of management of common property, and for the personal owned house,party with ownership should give reasonable compensation to the party withoutownership.This paper analyzes why the party without ownership has the right to claimcompensation, and summarizes the calculation methods of compensation amount inpractice, thus to get the fair and reasonable treatment on this issue.There are three chapters in this paper, which has a selective analysis on theownership and compensation issue of premarital mortgage house, and the reasonabletreatments on this issue in practice.Chapter one mainly does a scope definition on the premarital mortgage house. Itclears the analysis is based on the joint mortgage, and excludes the situation ofparents participating the payments. Then this paper summarizes the main disputesabout premarital mortgage house and analyzes the causes of these disputes.Chapter two analyzes the ownership of premarital mortgage house, combiningviews of academic circles and juridical practice.Taking Article10as core, this partdoes typed analysis on the premarital mortgage house.Then considering status ofdown payment, property right registration content, time of getting property right andso on, this part clears the cognizance of ownership of premarital mortgage house.Forthe premarital mortgage house in the scope of adjustment in Article10, this part doesanalysis on distinguish of property right get before marriage and after marriage,andclears that house property belongs to only one party should under the situation of thisparty paid the down payment by his/her own property, and the house property right isregistered in his/her name before marriage.For the premarital mortgage house out ofthe scope of adjustment in Article10, this part analyzed from the registered holder ofhouse property right is one part or both.Thus get the conclusion, if premaritalmortgage house does not meet the requirement of one party used personal property topay the down payment and registered right under his/her own name, the house shouldnot be judged belong to one party.Chapter three analyzed the compensation issues related to premarital mortgage house. It cleared that if judging the house belongs to one party, the party own theproperty right should provide reasonable compensation for the other party.Besides, italso did cooperation between calculation methods for compensation provided byacademic circle and judicial practice, to draw a relatively clear calculation standard tosolve this actual problem.