Analysis On The Property Right Of Premarital Mortgage Housing In Divorce Disputes In China

China's housing prices are rising,and it is very difficult for ordinary people,especially young people,to pay off the house at one time.But for the Chinese people,the house often means not only a place to live,but also a sense of belonging and stability of a family.Although it costs a lot to buy a house,it also costs a lot to rent a house without buying a house.Under such circumstances,more and more young people choose to buy houses by mortgage and borrow money from financial institutions to get married housing ahead of time.However,with the high divorce rate,the dissolution of marital relationship not only causes the change of identity relationship,but also causes the change of property relationship to a certain extent.Premarital mortgage houses have become the focus of the divorce disputes because of their large value and volume.This is mainly because housing belongs to real estate.The real right law of our country emphasizes the principle of publicity of real estate right,while the marriage law emphasizes the system of common property of husband and wife.The legislative basis and value concept of the two are different,which leads to many disputes on the division of mortgaged houses before marriage.If the principle of publicity of real estate registration is applied mechanically,the special characteristics between husband and wife will be ignored.The special personal relationship will lead to the imbalance of the interests of couples,while the over-emphasis on the common property system of couples in the field of marriage law is suspected of neglecting to protect the legitimate rights and interests of individuals.Because of the ambiguity of the existing laws on pre-marital mortgage housing,the segmentation of pre-marital mortgage housing,whichinvolves multiple legal subjects and multiple legal relationships,has become a difficult and hot issue in divorce disputes between husband and wife.It is against this background that the Supreme People's Court's Interpretation(3)on the Application of the Marriage Law of the People's Republic of China(hereinafter referred to as Interpretation 3 of the Marriage Law)has been promulgated and implemented.Article 10 of the Judicial Interpretation provides clear legal guidance on issues arising from the signing of a house purchase contract before marriage,the payment of down payment and the mortgage formalities for the payment of all the house payments,and the mortgage houses jointly repaid by the husband and wife after marriage,such as the identification and division of the nature of the houses and other related issues.However,the implementation of this judicial interpretation can not completely solve all the complicated problems faced by divorce in real life when divorcing premarital mortgage houses.In addition to the conflict of legal basis and value orientation between the marriage law and Property Law mentioned above,the legal act of pre-marital mortgage house purchase involves many legal subjects and legal relations,which leads to difficulties in identifying the facts of mortgage house segmentation and difficulties in legal application.It can be said that the current marriage law is still lagging behind the development of social and economic life.In dealing with the division of pre-marital mortgage houses in divorce disputes in China,we should realize that it involves not only the treatment of marital status and property relations,but also other legal relations between divorced couples and other subjects.It is because the division of pre-marital mortgage houses is very special.When dealing with such problems,we should consider the legal facts comprehensively and grasp the relevant legal provisions accurately so as to make the application of the relevant provisions of various departmental laws converge well,so as to achieve the balance of interests of all parties,such as the husband and wife,and the third person outside,so as to better guide people's economic and living behavior related to them.In the preface,this paper first outlines the problems in theidentification and division of the nature of pre-marital mortgage houses in divorce disputes in China,and the relevant legislation at home and abroad,as well as the author's discussion and analysis.The four parts of the main trunk are as follows:The first part is the guidance of the problem: outline the rise and development of the mortgage housing system in China,the legal relationship involved in the pre-marital mortgage purchase behavior,and sort out the relevant domestic and foreign legislation related to the pre-marital mortgage housing segmentation.The second part is the question: through six cases,four problems in the nature identification and segmentation of pre-marital mortgage housing are brought forward,including: what is the nature of pre-marital mortgage housing,what are the principles of this type of segmentation,what are the nature and how to deal with the investment situation of parents participating in the purchase of children's mortgage housing before and after marriage,and the nature of the value-added part after marriage.What is it and how to partition it.The third part is the discussion and analysis of the problem: based on the four questions raised in the second part,it leads to all kinds of controversies caused by the four questions,and explores and analyses whether the theoretical basis of different concepts is correct.On this basis,it summarizes the answers to each question separately in the case of the second part,and gives the author's humble opinions.The fourth part is the thinking and suggestions of the problem: It briefly summarizes the legislative aspects of the identification and division of the nature of premarital mortgage houses in China,and puts forward its own views on the perfection of this issue so as to contribute a little to the construction and improvement of the premarital mortgage housing division system in China.