| In China,the mortgage purchase system after nearly a few decades of communication and development,has a pivotal position,and it has become one of the main purchase methods in our modern life.At the same time,legal disputes and theoretical contradictions related to mortgage housing are also emerging.In modern society,due to the strengthening of human rights,the rapid development of market economy,rising prices and other reasons,"Marriage Law of the People's Republic of China" legislative ideas are imperceptibly changed,these factors influence the legislative direction of the Marriage Law on the mortgage housing system.For the division of mortgage houses purchased by personal property before marriage,the attribution and value-added segmentation in divorce has always been the practice and theoretical controversy hot spots.And the “Interpretations of the Supreme People's Court about Several Issues Concerning the Application of the Marriage Law of the People's Republic of China(III)” in the pre-marital mortgage housing ownership problem is too broad,fuzzy,and there are contradictions between the legal systems.Article 5 of the personal property produced by the "fruits" and natural value as individual and Article 10 of the mortgage housing common repayment part of the "value" under certain conditions as a common law of husband and wife exist contradictory,and in the final analysis,how to solve the husband and wife common property system and the balance of property system is the key.For the ownership of the mortgage house when divorce,Article 10 also provides only a directional solution,in what circumstances can be identified as husband and wife have not mentioned too much,and it is leading to the provision of overhead in judicial practice;For the qualitative part of the mortgage housing value,the Supreme People's Court's position is also hesitant,the Supreme People's Court thinks that should be considered the contribution of husband and wife,but ultimately,the Supreme People's Court's believes that the fruits belong to the original in accordance with the " Property Law of the People 's Republic of China" principle,strives to return to the marital relations in civil legal relations,and forms a complete system.However,in the judicial practice,the convergence of "property law" and "marriage law" is blunt.Legislators return marital relations to civil relations,but also ignore the particularities of marriage and family;for the segmentation of mortgage housing value-added part in the divorce,"Interpretations of the Supreme People's Court about Several Issues Concerning the Application of the Marriage Law of the People's Republic of China(III)" does not provide a clear calculation.In addition,each court has a different understanding of the nature of the mortgage housing purchased by pre-marital personal property,therefore,the method of calculating the value-added part is different.How to combine the various factors,reasonably determine the nature of the attribution and bonus of the premarital mortgage house in divorce,be combined with the concept of modern marriage and traditional marriage concept,achieve the balance of personal interests and the interests of the marriage community,and let the situation,reason,law organic unity,is the author's purpose in this paper.I summarize the theory and practice in different views,compare the domestic and foreign legislation,analyze the domestic legislation course and the typical case,and design the corresponding questionnaire to carry on the small sample investigation,I try to summarize the reason for the nature of ownership and value-added segmentation of mortgage houses that affect the purchase before marriage,analyze the relationship between marriage and family is based on the marriage community as a prerequisite from the fundamental,and I think it should have the meaning about protecting the individual independent value for the modern "marriage law".I infer the nature of the mortgage house before marriage belongs to the buyer in principle,with the exception of the case of conversion to couples.The value-added part of the marriage should be regarded as a couple,and I will present in this paper of the value-added part of the split calculation method.Apart from the introduction and the postscript,this paper comprises of three parts,the main contents of this paper are as follows:The first part introduces the mortgage housing system.Through the mortgage housing in the legal relationship and the qualitative mortgage housing,to help understand the mortgage housing ownership and value-added part of the identification in the later.The second part mainly studies the attribution and segmentation of the premarital mortgage house in divorce.By introducing the corresponding cases,the paper summarizes the factors that affect the attribution of the mortgage house,including the time of obtaining the certificate of the property right,the proportion of the investment,the repayment ability of the husband and wife after divorce,and put forward the situation in which mortgages are shared by couples.The third part mainly studies the compensation of the premarital mortgage house in divorce,introduces the corresponding cases and the evolution of our country's legislation and judicial interpretation,analyzes the nature of the value of marriage after marriage,and puts forward the specific value-added segmentation calculation method. |
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