Research On The Belonging Of The Proceeds Derived From Personal Property After Marriage

This article is concerned with the belonging of the personal property’s proceeds after marriage.The current Marriage Law of the People’s Republic of China does not specify the attribution of these marital proceeds.In order to settle the divided opinions,the Supreme Court has made some interpretations on the matter.However,it failed to achieve its goal since that the interpretations conflicts with each other in some degree,which on the contrary heated the debate among the scholars on the regulation of this issue.On the basis of summarizing and commenting on the existing points of views of the scholars,this article tries to settle the issue of the belonging of the proceeds derived from personal property after marriage with a different explanation from the common theory according to the law in force.The article can be divided into three parts.The first part is about the classification of the proceeds derived from the individual property.This part starts with a review of the prevailing trichotomy of the proceeds.Recognizing its inherent faulty in logic,this article puts forward a new trichotomy to make the classification more scientific.The second part is constructed under a dichotomy of "new property" and "proceeds which can not be regarded as new property".In this part,the prevailing doctrine and other doctrines to settle the issue are to be introduced and explained.And some comments will be made on doctrines not prevailing.The third part is about how to settle the belonging of the personal property’s proceeds under the understanding of the common regime after marriage in China.In this part,the prevailing doctrine--the doctrine of joint effort--will be reviewed,on the base of which this article tries to convince the readers that the doctrine of joint effort is not consistent with our law in force.According to the opinion of this article,another explanation can be made from the law in force which is more persuasive than the doctrine of joint effort.The new explanation made by this article is mainly based on the legislative purpose of the separate property.Along with the new explanation,the article will also redefine the concept of joint effort to make it consistent with the law in force.This article also regards the idea of joint effort as the base of our common regime after marriage.However,the article stresses that the idea of joint effort can be admitted only on abstract level,which means that it can not be used to settle the dispute of the belonging of the proceeds derived from personal property after marriage,the reason of which is that the idea of joint effort is not the only factor that legislators concern when they made Article 17 of marriage law.Before it is balanced with the value of "personal property protection",the idea of joint effort can contribute nothing to the explanation of what kind of proceeds derived from personal property shall be regarded as community property.However,the ambiguity of the legislative intents in our marriage law never means that the belonging of proceeds derived from personal property can not be settled by current law.As far as this article is concerned,by revealing the true intention of Clause 5 under Article 18 of marriage law,and giving a integral review of Clause 5 under article 17 and Article 18 of marriage law,the belonging of the new property derived from personal property can be settled.When it comes to the belonging of “proceeds acquired after marriage which can not be regarded as new property”,with the help of Clause 1 under Article 11 of marriage law judicial explanation NO.2,which states that “when investigation is involved,the proceeds derived from personal property shall be regarded as community property”,the belonging of “proceeds which can not be regarded as new property”can also be settled.This article concludes that all the new property derived from personal property after marriage should be regarded as the community property,while the belonging of the proceeds acquired after marriage which can not be regarded as new property counts on the conception of ”investigation”.When the appreciation is regarded as investigation proceeds,it shall be community property,.Otherwise,the proceeds shall belong to it’s original owner only.