Research On The Division Of Human Capital In Divorce

In the marriage period,the spouse's contribution to the other party to obtain the human capital in the divorce how to split or give the spouse of the employer,that is,the issue of human capital compensation has been in the judicial practice and academic attention and controversy.At present,China's current system of divorce and divorce relief system can not be given to the spouse of the sponsor to fair and reasonable economic compensation.This is not only contrary to the "Marriage Law"the basic principles of equality between men and women contained in the form of equality and substantive justice connotation,is not conducive to the protection of marriage in the spouse on the other side of the trust and expectations.The human capital has the property attribute from the angle of economics and law,and the human capital has the attribute of property.According to the special contractual relationship that marriage belongs to a kind of intervening relationship,the marriage established by both husband and wife can be regarded as a whole The maximization of the interests of the community,the marriage is the common interests of the parties to the partnership,then the spouse to the other side of the investment results that human capital into a present or future benefits,such human capital should belong to Husband and wife common property,the spouse at the time of divorce has the right to reasonable compensation for the sacrifice or contribution paid to the spouse of the beneficiary.This paper will demonstrate the above five points from the following five parts:The first part expounds the connotation and characteristics of human capital.Human capital refers to the specific expression of the value of the collection,and attached to the performance of the person as knowledge,ability,etc.that can bring some kind of income in the future,with a degree certificate,professional certificate,etc.,it has personal dependency,value variability and privatization.From economic point of view,by investing in education,training or accumulated work experience and other investment methods can generate or improve human capital,these investments will determine the embodied in the human knowledge of the stock and skills of capitalization pricing,resulting in economic benefits;from Civil law point of view,human capital has economic value,can be dominated by their own.Although it is attached to the person,this does not prevent human capital into other property interests.Comprehensive Civil Law and Judicial Interpretation in China,It is more appropriate to identify human capital as a special property interest in a particular divorce context and to incorporate it into other "legal property".The second part introduces the nature of the marriage,and then finds that the spouse's contribution to the other party's promotion of human capital during the existence of the marriage should belong to the common property of the husband and wife.Under the statutory property system,from the marriage is essentially a relationship involved in the relationship between the contract,both men and women concluded a marriage contract,the two sides can be expected:if combined with the use of both the various resources,including human capital,based on the marriage contract to form a community of interests,one spouse finances the other party to enhance the human capital.Then in this special contractual relationship,the husband and wife should be in line with the risk of sharing,the principle of sharing revenue,The human capital promoted by one party during the period of the marriage shall be vested in the common property of the husband and wife,the spouse of the sponsor has the right at the time of divorce to claim to share the proceeds or to request the corresponding compensation.The third part introduces the judicial practice of divorce human capital in other countries or regions from the perspective of comparative law.This section focuses on three divisions of human capital promoted during the continuance of marital relations:property divisionism,compensatory supportism and divorce damages.Compensatory supportism means that human capital does not belong to property and is compensated by the spouse of the grantor within the existing legal framework,but the payment of the support fee is legally limited.According to the American jurisprudence,the application of the divorce damages system is basically the same as the constituent elements of the general infringing cases,but the divorce cases involving human capital are related to the divorce cases of the human capital,and the divorce cases of the divorce damages system are basically the same,Not only have a spouse on the side of the existence of the wrong situation;Although the division of property is not consistent with the connotation and denotation of the concept of traditional property,The human capital with the form of personal attributes,such as degree certificate,vocational certificate,etc.,is regarded as a special common property of husband and wife,its operation does not exist compensatory maintenanceism exists after the divorce of the donor's economic situation,nor does it take into account whether the spouse of the beneficiary of the divorce damages has a fault on the divorce,whether or not it is So it is a loss,so it is feasible to identify it as a divisible special property within a particular condition or framework.The fourth part introduces the shortcomings of the current marriage law and judicial interpretation in dealing with the problem.At present the court in the trial of divorce cases three main divorce relief system,namely divorce damage compensation system,household labor compensation system and divorce economic help system.Among them,the household labor compensation system is only applicable under the conditions of the property system,in most of the marital relationship between the husband and wife to take no room for marriage;divorce economic assistance system in the social security system is still perfect in the case of mining Absolute difficulty of the harsh standards,resulting in its adoption in the judicial practice is not high;divorce damage compensation system to take the responsibility of the fault liability principle,no fault,no damage,the sponsor spouse can not ask the beneficiary of the corresponding compensation.In other words,the divorce relief system can not be justified in the case of a human capital involved in the spouse's financing of the other spouse during the existence of a matrimonial relationship,and the compensation for the divorce is not fair from the spouse Due to human capital to enhance the expected benefits.The fifth part elaborates the methods and principles of the separation of human qualification promoted during the marriage.There are two main ways to divide:first,to rely on the benefits of compensation,focusing on the divorce when the spouse compensation for the other party and the economic division of labor caused by the decline in income and other marital contributions;the other is expected to benefit compensation,This approach focuses on the increase in the income of the spouse's other party by the spouse's side and increases its own human capital and distributes the benefit equally between the spouses.Expectation of benefits compensation has the function of filling costs and sharing future benefits,covering the function of trust compensation,and the maintenance of the spouses' benefit compensation.The principle of division of human capital must follow the principle of fairness and autonomy,and it is necessary to divide the human capital as the common property of husband and wife during the marriage of the specific model.But also on the human capital segmentation of specific operational methods such as human capital valuation,split the proportion of payment methods were discussed.