Study On The Division And Compensation Of Intangible Property In The Divorce

With the rapid development of the social economy,the manifestations of property have diversified,from the previous tangible property to the tangible property and intangible property coexist.The early tangible property can no longer cover the entire contents of the joint property of the couple.The intangible property such as intellectual property and income,housework and human capital began to show its own unique value and became an important part of the joint property of the husband and wife.The current Marriage Law only makes the intellectual property rights have gained or the clear available income during the existence of the marriage relationship as the joint property of the husband and wife,ignoring the time difference between the ownership of the intellectual property rights and the acquisition and realization of the intellectual property rights;although the domestic compensation clause recognizes the domestic labor legislation The important position in the marriage life,but the legislation only indirectly recognizes the value of housework,and does not clarify the property status of housework;for human capital,there is no provision in the law.This paper believes that:according to intellectual property rights and income,human capital,property attributes of housework should be included in the scope of intangible property in the case of divorce property disputes;the theory of marriage partnership and the theory of marriage interest provide the theoretical basis for the division and compensation of intangible property of husband and wife.The current legal provisions are imperfect,and the division and compensation of intangible property is also an urgent problem to be solved in judicial practice.The limitations of the legislative situation and the actual needs have laid a realistic foundation for the division and compensation of intangible property of husband and wife.China's divisional compensation for the divorce of intellectual property income is only a principled provision,which poses a challenge to the handling of cases in practice.The division and compensation for human capital and housework in current legislation can only be applied to the Marriage Law restrictively.Article 40.Incorporating the scope and benefits of intellectual property rights into the scope of divorce property division is in line with the concept of marital property system.When a spouse is required to divide the human capital obtained by the other party because of his more domestic work,the claimant may use economic compensation to relieve his rights in view of the personal specificity of the human capital and the uncertainty of the expected return.The concept of value attribute of intangible property,contribution value of spouse and early distribution of marriage interest provide necessary support for the improvement of husband and wife intangible property division and compensation;at the same time,marriage partnership theory and marriage interest theory lay the foundation for the division and compensation of husband and wife intangible property Rationality basis.On the specific improvement path,the value evaluation system and the expected income claim right for the expected income can be used for intellectual property rights;for the compensation of requesting human capital and housework,the scope of application of the financial compensation for divorce should be expanded,and the method of compensation should be clarified.