The Discussion Of The Ownership Of The Gains After Marriage Of The Personal Property Of Husband And Wife

In today's era,the property relationship between husband and wife is more and more complex.One of the performances is that the couple's property types and marital property changes are more and more.Then the proportion of the gains after marriage of the personal property is growing in the property of husband and wife.Our country generally adopts the common marriage system to deal with the ownership of the marriage gains,but the confirmation of the marriage gains of the personal property,is always a problem of the legislative and judicial practice,because they do not know whether the marriage gains belong to the individual or both of the husband and wife.The marriage legislation on the property of our country has been constantly changing and developing.The ownership of the gains after marriage of the personal property has been mentioned in the following marriage law judicial interpretation.However,after the careful analysis,we will find that there are some shortcomings in the relevant law.At the same time,the relevant law has too much expression of the personal standard of the civil law,ignoring the particularity and relative independence of the marriage and family law.Because the traditional Chinese stable concept of marriage and family,has been strongly impacted by the thought of the Western countries which pursue personal liberalism.And if the legislation overvalues the realization of personal values or the protection of the individual rights,the spirit of collaboration between husband and wife and the sense of family responsibility will be weakened.Moreover,the judge's understandings of the ownership of the gains after marriage of the personal property are greatly different.And then the situation "the same case has different judgment"will happen.It is unfair for husband or wife.The problem of the ownership of the gains after marriage of the personal property relates to marriage and family life in many aspects.Only by speeding up the legalization and standardization of the legal system can we fully exert the legal function of the system so as to ensure the fairness and justice in the judicial practice so as to realize the protection of the legitimate rights and interests of husband and wife in the marriage,so as to promote the harmonious and stable development of the society.Based on this,through the theoretical analysis,this paper firstly clarifies the scope of the personal property and the gains after marriage of the personal property and then analyzes the relevant domestic legislation to find out the problems in our country's legislation and think about the judicial practice in our country.And then,it analyzes the relevant foreign legislation and explores what is worthy to refer to in the relevant foreign legislation.In the end,combining with the previous analysis,this paper puts forward some legislation suggestions on how to solve the problem of the ownership of the gains after marriage of the personal property.Expect the introduction and the conclusion,the first part of this paper is the theoretical analysis.It introduces the implication,the scope and the legislation meaning of the personal property of the husband and wife to lay the foundation for the definition of the personal property;Then it introduces the implication and the three large-scale classifications of the gains after marriage of the personal property to make the main content of this paper's subject clear and discusses the things which need to be considered before judging the the ownership of the gains after marriage of the personal property.Then this part expounds the controversy of the academic circles in our country and analyzes their different theories.The second part mainly elaborates the legislation and the judicial practice of the ownership of the gains after marriage of the personal property at home.As for the discussion of the domestic legislation,it is mainly mentioned in Article 11 of"Marriage Law Interpretation(?)" and Article 5 of "Marriage Law Interpretation(?)";Then this part emphatically analyzes the main defects of Article 5 of "Marriage Law Interpretation(?)" in our country.As for the domestic judical situation,by elaborating the current situation and the corresponding case of our country's judicial practice,it points out the shortcomings in the relevant legislation which have the adverse effects on the judicial practice and thinking about the necessity of detailing the ownership of different types of the gains after marriage of the personal property,and making the relevant principle clear.The third part mainly examines the foreign legislation of the ownership of the gains after marriage of the personal property.At first,it analyzes the feasibility to learn the relevant legislation of the foreign countries.At first,this part introduces three kinds of legislative models and emphatically analyzes the legislative mode of part belonging to both of husband and wife,part belonging to the individual.Then,it evaluates these three models and draws the conclusions that the third model is more appropriate to our country and is required to have overall consideration.And this part discusses the feasibility of the German "remaining common system ",the French"compensation system "and the anglo-american "ccontribution theory "to be applied to our country.The forth part puts forward to several legislative proposals of improvig the ownership of the gains after marriage of the personal property.At first,the law should make two principles of judging the the ownership of the gains after marriage of the personal property clear.They are protecting the family function and the interests of disadvantaged family members and recognizing the role of husband and wife respectively.Secondly,it is necessary to expand the scope of the total property of husband and wife on the basis of the two principles when the ownership of different types of the gains after marriage of the personal property is reinterpreted.If the gain is the income from the direct investment,the gain after marriage of the personal property belongs to both of husband and wife.If the investment income is indirect,especially the stock income,it is required to think about concrete details.If the gain is the fructus,it is required to think about the assistance of one spouse to the acquisition of the fructus.If the process of the acquisition contains the assistance,the fructus after marriage of the personal property belongs to both of husband and wife.On the contrary,If the process of the acquisition lacks the assistance,the fructus after marriage of the personal property belongs to the individual.If the gain is the unearned increment,it generally belongs to the individual.Nonetheless,it is still required to think about the supplement of the economic support to the unearned increment after marriage of the personal property.If one spouse provides the economic support,one of the couple should be compensated.Thirdly,the proposal is to improve the relevant system.It includes adding the content of the contactual property system between husband and wife,optimizing the scope of personal property of husband and wife,trying to develop the registration system and setting up the compensation system of the personal property and the joint estate.