Research On The Determination Of Matrimonial Common Property

The "Marriage Law" has been revised for several times, and the Third Edition of Judicial Interpretation of Marriage Law promulgated by the supreme people’s court has provided comprehensive provisions on the identification of common property. However, with the hysteresis of laws and rapid socio-economic development, people have different views on property ownership in practice and theoretical circle. Human capital and intellectual property rights are the most controversial issues. Some human capital and intellectual property rights that are consistent with the attribute of "property" and are obtained during marital relationship are excluded from the scope of common property by existing laws, some people believe that this does not meet the common property system of Marriage Law, and is contrary to the pursuit of fairness and justice value. Therefore, the paper focuses on these two kinds of "property", and is expected to help identify the ownership of these two kinds of "property".This paper is divided into three parts: introduction, body and conclusion, in which the body is divided into four chapters, and is carried out according to the idea of proposing questions, analyzing problems and solving problem.The first chapter proposes the topic to be discussed in the paper. The author selects two cases about human capital and one case regarding intellectual property dispute, starts from the outcome of case, and reflects the existing problems about human capital and intellectual property in current Marriage Law. The author analyzes three cases, considers that problems about human capital and intellectual property during marital relationship have similarities,so discusses the two kinds of problems together. A spouse spends time, effort and money to take care of the family and children, and the other party consumes jointly owned property and converts it into personal achievement. As for divorce case, Chinese laws have deficiency in protecting the interests of the party who invested human capital.The application scope of divorce economic compensation system is narrow, divorce economic assistance system and divorce damage compensation system can hardly be applied for similar cases discussed in the paper.Meanwhile, "Marriage Law" Article 39 specifies that the interests and property of children and women should be taken great care when dividing property, but it does not protect the interests of husband. Moreover, if both parties have no common property or very few common properties, it does not need to take more care of woman. Under the present circumstances, it is difficult for one party to get compensation according to existing laws unless the other party voluntarily offers compensation. In view of this, some scholars propose that human capital and intellectual property of each party should be included into the couple’s joint property, which shall be divided in the event of divorce, so as to protect the interests of the other party.The second chapter focuses on the nature of human capital. Whether human capital belongs to the property is very important for the solution of marital problems regarding human capital. If human capital does not have property attributes, then it does not belong to common property, people have to seek other ways to protect the interests of the party,instead of considering human capital as a common property for division. Human capital is a very broad concept, in order to avoid overly broad scope of the research, the author confines the human capital during marital relationship to knowledge and qualification. Academic degree and vocational qualification certificate are the materialized forms of knowledge and qualification. There are two kinds of views on the existence and nature of academic degree and vocational qualification certificate: property hypothesis and non-property hypothesis.The core value of property hypothesis is that academic degree and vocational qualification certificate have property attributes, they are property. Human capital is the result of investment, in fact, it is the material turned from other kinds of properties. The jointly owned property should cover all kinds of properties, in order to adapt to social development. When a spouse tries to obtain human capital, the other party sacrifices his/her opportunity of self-development, does household chores and takes care of children. If academic degree and vocational qualification certificate are not identified as jointly owned property, in fact, this denies the other party’s contributions and sacrifices. When the party bears more family obligations than he/she should bear, the party is entitled to share the economic benefits brought by these statutory qualifications. The non-property hypothesis believes that academic degree and vocational qualification certificate are personal attributes; they are the manifestation of individual knowledge, experience and skills, which are not property attributes. They believe that human capital does not belong to property, its essence is the ability of its carrier for survival and prosperity.The author refutes the property hypothesis, and approves non-property hypothesis. Academic degree and vocational qualification certificate do not belong to the scope of property, but when a party acquires human capital, the other party’s contributions and sacrifices cannot be denied. The contributor does most of the housework, and its value reflects in his/her spouse’s obtained human capital. In the event of divorce, human capital has not achieved economic interests, the interests of contributor cannot be protected by dividing human capital. Blind expansion of common property scope cannot solve the problem, but will lead to more problems. The author believes that it is feasible to compensate the contributor for the domestic labor has been done.The third chapter discusses intellectual property problem. A couple can share intellectual property rights. Firstly, if the couple work together to carry out intellectual creation, the intellectual outcome is common property. Secondly, when the intellectual property is obtained through inheritance, transfer, gift and other methods, the couple can jointly share the intellectual property. At this time, the intellectual property belongs to a common property, so it should be considered as jointly owned property in accordance with the provisions of the Marriage Law. But in other circumstances, the ownership of intellectual property rights is not clear, the chapter mainly discusses two issues. 1.Whether the intellectual property acquired in marriage is jointly owned property; 2.If the intellectual property rights achieve no gains within marriage relationship, shall the intellectual property rights be divided according to the expected interests when divorcing?Among intellectual property rights obtained within marriage, the personal rights cannot be shared, scholars have reached a consensus on it. However, they have different opinions in the joint ownership of property right. This paper argues that the property right of intellectual property rights should not be regarded as jointly owned property. If the intellectual property rights in the identified as jointly owned property, it is unfair to the right holder. Intellectual property rights are usually obtained through ten years or even decades of accumulation of knowledge, experience, practice, technology and other factors, but the spouse just does some housework during the marriage relationship. The right holder pays high price of mental labor, which should not be treated as general physical labor of spouse. Intellectual property laws give the right holder the right to monopolize his/her intellectual rights, and protects the right holder’s economic benefits brought by intellectual achievements, so as to encourage more people to create. If intellectual property rights belong to common property, the right holders need to consult with their spouses before exercise their rights, this will greatly affect the effect of intellectual property laws in encouraging innovation.There are many theories about the expected interest ascription of intellectual property rights, including expectant right theory, personal right theory, intellectual property joint ownership theory, knowledge products economic benefits theory. The author analyzes each theory, and believes that the economic benefits of knowledge products were reasonable, the husband and wife’s joint work is reflected in the creation of knowledge product, so the economic benefits contained in knowledge product should be jointly owned property, but there is dispute over the form of contribution. The paper agrees that the expected benefits of intellectual property should not be jointly owned property, but its reasons are different from expectant right theory, personal right theory. The division of expected benefits of intellectual property is a misunderstanding of the couple’s conjugal system and cooperation principle. The incorporation of expected benefits of intellectual property into jointly owned property cannot solve existing problems, and there are many drawbacks in dividing expected benefits of intellectual property after divorce.Fundamentally speaking, the human capital and intellectual property problems during marriage relationship is that a spouse provides housework labor value but the other party turns such value into personal achievement, the spouse does not receive due benefits. In this paper, the second and third chapters deny that the intellectual property and human capital can be jointly owned property, the fourth chapter focuses on the method to protect the contributor’interests, that is, divorce economic compensation system. Divorce economic compensation system is a supplement to the property system, respectively. Under different property systems, the parties have independent property, but housework is the common obligation of both parties, the party that does more housework has the right to claim some compensation from the other party.With rapid social development, similar problems have occurred in the community property system. The key to solve these problems is not the expansion of common property scope, divorce economic compensation system is established to protect the party who assumes more family obligations, and provides more solutions to solve marital problems about intellectual property and human capital. Divorce economic compensation system is essentially pursing the substantial justice in the common property system,perfect divorce economic compensation system can solve existing problems and similar problems in the future.The theoretical basis of divorce economic compensation system is the labor value of housework. Currently the domestic labor value theory has been accepted by many countries, and the legislation also reflects the affirmation of the labor value of housework. For instance, France and Switzerland provide the right to claim financial compensation, Germany uses matrimonial property system to affirm the value of housework, and the American compensatory bringing up allowance combines the dual function of bringing up and division of property. The establishment and improvement of divorce economic compensation system is conducive to achieving gender equality and protecting the interests of party who does more housework in family, and guarantees the freedom of divorce. However, China’s divorce economic compensation system still needs to be improved. Article 40 of the "Marriage Law" provides the divorce economic compensation system, but it takes the separation of property regime as premise, leading to the situation where the vast majority of couples are excluded from the system. Meanwhile, China’ legal and judicial interpretation do not specify the standards for economic compensation, leading to the difficulty in operational practice.In view of the dilemma facing Chinese divorce marital property division system and deficiencies in divorce economic compensation system, the paper proposes to improve the divorce economic compensation system from four aspects. From the perspective of comparative analysis, there is no necessary link between divorce economic compensation system and matrimonial property system, divorce economic compensation system is still adopted spouses who choose the separation of property regime, and couples who adopt common property system are applicable to the system. Determination of compensation standards is determining the value of housework, it shall provide some factors that should be considered, in order to limit the discretion of judges. Divorce economic compensation system should be based on the premise of divorce, the couple who adopt separation of property regime are no exception. Compensation forms are diversified, and compensation can be provided by installments or at one time.