| With the publication of Judicial Interpretation(3)of Marriage Law in 2011,the division of marital common property has been formally established in China’s law.In China’s law,the reason why couples are allowed to divide up their common property within marriage is that there is a deep legal basis behind it and a new realistic basis emerging with the development of society.However,even if there are conditions for the division of marital common property,it does not mean that husband and wife can arbitrarily request the division of common property.On the contrary,due to legal,economic and ethical reasons,it is necessary to restrict the division of marital common property,that is,only when there are legal reasons can the division be appealed.Article 4 of the Judicial Interpretation of Marriage Law(3)only stipulates two statutory reasons.As far as the statutory reasons of the first paragraph are concerned,it should be understood that the unfavorable acts committed by one spouse against property should be limited to the six acts specified in the law."Serious damage to the common property interests of husband and wife" belongs to the severity of the damage consequences of these six acts."Hiding" and "transferring" usually occur together.If one spouse does not want the other to know or manage the joint property of the husband and wife,it is more likely that the joint property will be transferred besides the concealment.It is easier to judge whether a spouse’s behavior belongs to "sell-off" or not by whether the spouse has justified the act.It is concluded that the behavior of one spouse belongs to "profligacy",either because of the illegal use of common property,or because of the level of consumption or the value of property donated to the third person without authorization,which is beyond the scope of the economic level of the spouse at the present stage.The so-called "forgery of joint debts of husband and wife" can mean forging personal debts into joint debts of husband and wife,or exaggerating the amount of joint debts.When judging whether the damage has reached its severity,one spouse should consider whether the spouse’s behavior has damaged or may damage the other spouse’s share of property.As far as the second legal cause is concerned,whether in terms of literal interpretation or purposeful interpretation,a spouse suffering from a serious disease does not fall within the scope of the application of this paragraph.Although the so-called "major diseases" in law are not identical with the recognition of "major diseases" in medical and insurance industries,the recognition of "major diseases" by the two industries meets the legal standards.For those beyond the scope of the two,professional medical knowledge is needed to determine the duration and cost of treatment for a disease.Secondly,what the law should do is to determine how long the treatment period is longer,the scope of medical expenses,and what criteria are higher medical expenses.Except for the two reasons stipulated in the judicial interpretation,the Supreme People’s Court’s Provisions on Sealing up,Seizure and Freezing of Property in Civil Enforcement of the People’s Court promulgated as early as 2004(hereinafter referred to as the Provisions on Civil Enforcement hereinafter)is a provision on joint owners,but its interpretation should be considered as the same.It can be applied between husband and wife.If the personal property of one spouse is insufficient to pay off the personal debt,not only one spouse may appeal for the division of common property,but also the creditor may appeal for the division of the property of the debtor’s spouse by subrogation.If the court grants the division of marital property on the basis of legal reasons,the division of marital property shall not change the marital property system in principle.But at the same time,there are exceptions.In exceptional circumstances,it would be more appropriate to change the marital property system to separate property system.If the court permits the division of joint property,the time for calculating the joint property shall be at the time when one of the spouses brings a lawsuit.However,if the adverse acts of one spouse against the common property occur before the lawsuit,the common property can be added for a certain period of time.If the court allows the husband and wife to adopt separate property system,the time of property separation should in principle be traced back to the time when one of the spouses brings a lawsuit.If the property acquired during the court’s judgment is still the result of the joint efforts of the husband and wife,the separate property system may be executed exceptionally after the court’s judgment comes into effect. |
