Keywords:: marital property system/feminist/gender perspective
First of all, the questions raised
With the development of market economy, China's private economic team is growing day by day, and the property relationship between husband and wife presents a complicated and diversified trend. Great changes have taken place in the number, types and structure of the joint property of husband and wife, which has created conditions for one spouse to dispose of the joint property privately and encroach on the property rights and interests of the other spouse during divorce. Article 47 of the Amendment to the Marriage Law stipulates: "If one party conceals, transfers, sells off, damages or forges debts in an attempt to occupy the property of the other party, when dividing the marital property, the party who conceals, transfers, sells off, damages the marital property or forges debts may be given less points or no points. After the divorce, if the other party finds the above-mentioned behavior, it may bring a lawsuit to the people's court and request to divide the joint property of the husband and wife again. " However, in judicial practice, how to identify the act of concealing or transferring the property of husband and wife? Why can't the woman's cross-examination of her husband's concealment of the transfer of marital property be supported by the court? What gender-related factors affect women's property rights in divorce proceedings? This is a new problem that has been encountered since the implementation of the Marriage Law Amendment 200 1 in April, and it is also an urgent problem to be answered and solved.
The marital property system is a legal system that stipulates the marital property relationship and related issues. Including the ownership, management, use, income and disposal of marital property before and after marriage; The settlement of husband and wife's debts and the burden of living expenses; Liquidation and division of husband and wife's property at the termination of marriage. In the content of marital property system, the most important core content is the ownership of pre-marital property and post-marital property.
In April of 20001year, the amendment to the marriage law implemented in China stipulated three kinds of marital property systems: legal property system, agreed property system and personal property system. Article 17 of the Marriage Law stipulates that husband and wife have equal rights to dispose of all property owned by * * *. Although the law stipulates that husband and wife have equal property rights, in fact, many women's property rights have become a fragile link in the process of divorce. Through the analysis of 365 court files and cases, Jin found that women are at an obvious disadvantage in real estate division; The burden of raising children falls more on women; It is extremely difficult for women to win in the competition for production and operation materials and management rights; Women's claims to the same property are often not supported; Women give up their rights and interests for various reasons, and after the premise of giving up their rights and interests changes, they often don't get the corresponding rights (Jin, 2002).
In the property division of divorced couples, the essence of the power relationship between the sexes and their actual possession and disposal of family property can be fully reflected. Therefore, this study chooses Hu v. divorce case in Harbin, Heilongjiang Province as the biggest divorce case of property dispute after the promulgation and implementation of the new marriage law. Hu Yu's divorce case has aroused widespread concern in society. On April 20th, 20001year, Hu filed an indictment for divorce with the People's Court of nangang district, Harbin, demanding to dissolve the marriage relationship with her, raise her daughter, and divide the common property during the marital relationship according to law. 20011165438+3. The nangang district People's Court ruled in the first instance that the married daughter would live with her, and Hu would pay the maintenance fee to 200 yuan every month, and use a set of public houses with an area of 28 square meters, which was rented by H's daughter. Two hot pot restaurants, an industrial company, three houses and three cars with objections to both sides were sentenced to another case because outsiders claimed rights. Hu, who was sentenced to return empty-handed, objected to custody and property division, and appealed to Harbin Intermediate People's Court on 2001+0. On April 12, 2002, the Intermediate People's Court issued a civil ruling and decided to suspend the trial of this case until another property dispute lawsuit was terminated. In May, 2002, Hu sued the nangang district court, demanding that the ownership of Harbin Hongming Hotpot Restaurant (Xuanhua Store and Store) be confirmed according to law. Hu was confirmed as the property owner of the two hot pot restaurants in the first instance, but the man refused to accept the appeal. At present, the case is in the second instance of confirmation.
Under the framework of three marital property systems stipulated in the Marriage Law, this study studies the division of marital property in the process of divorce, in order to explore which social and cultural factors related to gender hinder women from obtaining a fair judgment in judicial practice, and how women's property rights benefit from de jure equality and de facto inequality.
The case analysis of this study is mainly based on the following materials: (1) nangang district People's Court of Harbin (200 1) Nanminyichuzi No.2236; (2) Harbin Intermediate People's Court (2002)No. 184 civil ruling; (3) Three opinions on Hu v. Divorce, legal opinions issued by Wu Changzhen, Yang Dawen, Chen Mingxia and Xia Yinlan to Harbin Intermediate People's Court; (4) The power of attorney of Hu's entrusted agent, Heilongjiang Fazhun Law Firm, and Hu's appeal; (5) Personal evidence of Hu's husband and wife's property, including: the capital verification report when the two hot pot restaurants were established, the filing materials for the change of registered capital, the filing materials for the change of registered items of the person in charge of the enterprise, the purchase receipt, the purchase contract, the company's industrial and commercial registration filing materials, and the motor vehicle registration form; (6) Interview materials with Hu and his attorney.
This paper is only a special divorce case study, and it cannot infer the overall situation of divorce property division in Chinese mainland. Regarding the basic situation of divorced women's property rights, I will borrow data and conclusions from other related studies. However, this divorce case can deeply explore and analyze the gender factors of women's property rights damage, which will help us understand the law of social gender system construction and pay attention to gender justice in judicial practice.
Second, the case introduction: Why did Hu return empty-handed?
Hu got married on June 25th, 1997 on/kloc-0. After their marriage, they lived with Li Zhongming's parents and gave birth to a girl in Hiuke on July 8th. 1999. Then the relationship between husband and wife deteriorated. In February 20001year, Hu and her husband took 500,000 cash from home and left Dalian with their young daughter. Then the husband and mother-in-law reported to the public security organ that the house had been stolen. She was quickly picked up from Dalian by Harbin Nangang Public Security Bureau and stuffed into the detention center. On March 17 of the same year, police in Nangang, Harbin detained Hu on suspicion of theft. On April 4, the police's request to arrest Hu was returned by the procuratorate, and Hu was released on bail pending trial.