Abstract: After the promulgation of Interpretation III of Marriage Law, two provisions on divorce property have aroused widespread criticism in the media and academic circles. The progressive significance of the new judicial interpretation is mainly reflected in three aspects: it conforms to the development trend of marital property system in marriage law, the basic principles of property law and contract law, and the basic principle of "autonomy of will" in civil law. As for the possible impact of the implementation of Interpretation III on China's existing legal system, this paper comes down to three aspects: the transformation of litigation mode and the promotion of contract spirit, the emphasis on tendentious legislation and the opening of the diversified development process of marriage and family law.
Housing ownership, marital property system, female divorce
First of all, the questions raised
20 1 1 On July 4th, 2008, the the Supreme People's Court Judicial Committee passed the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China (III) (hereinafter referred to as Interpretation III), and since August of 201/kloc-0, the judicial interpretation has been * */kloc-.
Article 7 of Interpretation 3 stipulates: "If the property right of the property purchased by parents for their children after marriage is registered in the name of the investor's children, it can be regarded as a gift to only one of their children according to Article 18 (3) of the Marriage Law, and the property should be recognized as the personal property of the husband and wife. If the property right of the house purchased by both parents is registered in the name of a child, the house can be regarded as shared by both parties according to their respective parents' share of capital contribution, unless otherwise agreed by the parties. "
Article 10 stipulates: "One of the husband and wife signs a real estate sales contract before marriage, pays the down payment with personal property and borrows money from the bank, and repays the loan with the same property after marriage. If the real estate is registered in the name of the down payment, the real estate shall be handled by both parties through agreement at the time of divorce. If no agreement can be reached in accordance with the provisions of the preceding paragraph, the people's court may decide that the real estate belongs to the party with registered property rights, and the unpaid loan is the personal debt of the party with registered property rights. At the time of divorce, the party handling the registration of property rights shall compensate the other party in accordance with the principle stipulated in the first paragraph of Article 39 of the Marriage Law. "
The media and academic circles have constantly criticized the provisions of Interpretation III on divorced real estate. The reason is that they are worried that these two provisions will weaken the legal protection of the weak (mainly women) in the family, and then expand the substantive inequality between men and women, which is the main reason why they have become the target of public criticism. Some commentators believe that this phenomenon of "in-laws buying houses and daughters-in-law having no share" violates the traditional marriage ethics in China, destroys the family culture of "making peace with the family", and is bound to seriously impact or even destroy the value of marriage ethics pursued by China people for thousands of years. Abandon the influence of special national conditions and traditional culture on marriage and family relations, violate the biological law of "nesting to attract phoenix" and the social law of gender division of labor, and blindly promote the concept of "whoever invests will benefit" in modern market economy. The social recognition of the judiciary will be greatly reduced, the actual effect of the judiciary will not be produced, and the authority of the judiciary will gradually decrease. "
Some scholars even call it "blowing the horn of China's family capitalism" and think that such a provision is "overwhelming family values with individualism, infecting the family cells that cultivate morality, good customs and people's feelings with the virus of personal rational calculation, and the tradition of loving the father and filial piety will disappear". If this capitalist principle of personal property is introduced into China's marriage practice, "it will destroy not only marriage, but also people's hearts".
However, these criticisms have also aroused people's thinking: Does the change of course in Interpretation III mean that China's marriage and family law has turned to the legislative concept of women and marriage? Is it really the "alienation" that scholars call "shifting marriage and family relations and destroying human relations"?
Second, the legal review of divorce property provisions
The progressive significance of Interpretation III is self-evident. No matter from the clarification of theoretical system or the operation of judicial practice, the legislative design of divorce real estate regulations is progressive, and its positive significance is reflected in the following three aspects:
(A) in line with the "Marriage Law" the development trend of the marital property system
Since the founding of the People's Republic of China, the marriage law has experienced the trend of changing from "the integration of husband and wife" to "the individualism of husband and wife". The "holism" property legislation tends to incorporate the property before and after marriage into the joint property of husband and wife as much as possible. 1984 "opinions of the Supreme People's Court on several issues concerning the implementation of civil policies and laws" stipulates in article 12: "although it is personal property before marriage, it can be regarded as joint property of husband and wife if it has been used, operated and managed by both parties for many years after marriage." 1993 "Several Specific Opinions of the Supreme People's Court on People's Courts Handling Divorce Cases" stipulates in Article 6: "Property owned by one party before marriage shall be jointly used, operated and managed by both parties after marriage, and houses and other valuable means of production, after 8 years and 4 years of valuable means of subsistence, can be recognized as joint property of husband and wife. "Individualism" property legislation will increase the scope of husband and wife's personal property as much as possible. The Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China (I) has changed the previous practice and clearly stipulated that one party's pre-marital property will not be converted into * * * property due to the continuation of the marriage relationship. " Interpretation 3 "is to divide the donated houses and mortgaged houses with property rights obtained after marriage from the scope of * * * property." It can be seen that the protection of women in China's legal system is more and more comprehensive, and it has not weakened with the change of property system. The legal provisions on divorced real estate in Interpretation III conform to the development track of modern family legislation from "holism" to "individualism", and pay more attention to the dual protection of women's property independence and personality independence, which not only responds to the demands of gender equality in the new era, but also realizes the renewal of legislative ideas.
(2) Conforming to the basic principles of the Property Law and the Contract Law.
According to the theory of "expectation of real right", the buyer enjoys the expectation of real right after the agreement of real right is concluded and before obtaining the real right, and the creditor's right at this time has the property of real right. The change of the buyer's property form from creditor's rights to real rights only happens around him. During the period from signing the house sales contract to obtaining the house property certificate, inserting the legal act of marriage cannot change the definition of the ownership of the mortgaged house as personal property before marriage. Under the principle of "property rights publicity", the acquisition and change of mortgaged real estate is based on ownership registration, and the conclusion of marriage relationship cannot produce the legal effect of ownership change.
Based on the "relativity" theory of contract, the creditor-debtor relationship that only exists between the buyer and the bank does not need to be publicized, and the loan owed will not be naturally changed from personal debt to husband-and-wife debt because of the change of marriage relationship. "Repaying the loan with the joint property of husband and wife after marriage is equivalent to the buyer's spouse voluntarily repaying others' debts in an implied way, which is a typical debt behavior". Only the right to claim the return of creditor's rights between the two parties can be generated, but not the relationship of * * * *. It is worth noting that Interpretation 3 clearly stipulates that the down payment party of the mortgaged house must compensate the money repaid by the other party after marriage and its corresponding property appreciation, which is indeed the highlight of the new judicial interpretation.
(3) Conforming to the basic principles of civil law
Parents contribute money to buy houses for their children, which belongs to the legal relationship of gift in civil law. On this issue, the expression of will of the original obligee (contributing parents) plays a decisive role in the transfer of property. From the perspective of respecting reality, the law clearly stipulates that the donated property is only registered in the name of the child who gave it to the parents, which means that the parents intend to give the house only to the children and not to the spouse. It is also the most credible legal presumption, closest to the true meaning of the donor, and most in line with the basic principle of autonomy of will in civil law. It is very likely that the donated house will be regarded as the property of husband and wife, which will lead the contributing parents to buy a house for their children with most of their savings, but the children will not get the house when they divorce, which will seriously violate the wishes and interests of the donor and completely violate the principle of autonomy of will in civil law. In this way, the "property autonomy" of husband and wife will be shelved, and the basic principles of civil law of autonomy of will will be seriously damaged. The legal provisions on divorced real estate in Interpretation III are revised from the perspective of civil legal relationship, which clearly recognizes that the real intention of parents to donate real estate is for the private interests of their children, so that the subject of the gift contract will not be renamed or changed because of divorce and property analysis.
Third, the boosting effect of divorce real estate laws and regulations
We might as well put the legal provisions of divorced real estate in a broader perspective and make a bold prediction on the impact of the existing legal system. The author believes that its boosting efficiency is at least reflected in the following three aspects:
(A) the transformation of litigation mode and the promotion of contract spirit
Colleagues engaged in judicial practice have reported that the number of cases of signing prenuptial agreements has quietly increased, and the mode of divorce proceedings in the future is likely to change-not only playing games in court, but also competing when signing prenuptial agreements. The most direct positive effect it brings is the saving of judicial cost and the improvement of litigation efficiency. Coupled with the fact that both parties have clearly defined their rights and obligations when choosing a spouse and getting married, then a series of behaviors will no longer be blind, and the cost of the whole social activities will be reduced. In addition, after the establishment of the principle of individual property rights priority, it will strengthen the self-governance of the parties on the property relationship between the two parties, and then promote the contractual spirit of the whole society. This concept of private law that attaches importance to the spirit of contract is not only the result of developing market economy, but also promotes the further development of market economy, which is very important for the formation of civil society, the improvement of private law system and the construction of a country ruled by law.
Emphasize biased legislation
In short, some scholars pointed out that the dispute over divorced real estate "essentially boils down to the question of whether to use the marital property system or to use the marital property system separately to achieve equality between men and women." Most countries and regions, such as Germany, Britain, Switzerland, China and Taiwan Province Province, have adopted the practical method of marital property system, which has the same effect on protecting women and achieving the legislative goal of gender equality. Under the separate property system, women have independent property rights and personality rights, and their actual disadvantages can be made up by stipulating that the family living expenses are mainly borne by the man, increasing the amount of divorce support, or the man compensating the woman. In the final analysis, the protection of rights by law follows its unique law of development, that is, "no property means no personality".
(C) the opening of the diversified development process of marriage and family law
Compared with the legal provisions of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China (II) on the house donated by parents after marriage, the definition of the ownership of divorced real estate makes women's income from marriage worse than before, and their enthusiasm for marriage investment also decreases. Under many complicated social backgrounds, such as the general improvement of women's economic status, the increasingly sound social security system, the reduction of career development restrictions and the continuous extension of education years, the marriage and love behavior of Chinese people shows the phenomenon of delaying the age of first marriage, rising divorce rate and quietly increasing unmarried cohabitation. The attraction of marriage to women has decreased, and the constant emergence of non-traditional families has brought new challenges to the application of marriage and family law. The provisions of the new judicial interpretation make the choice of returning to family and developing career lead to completely different property status of divorced women. The innovation of family forms will inevitably lead to the end of the era of "marriage" dominating the whole country, and the process of diversified development of family law will also begin.
Four. conclusion
The legislative background of Interpretation III is the contradictory and concurrent situation of rapid industrialization and urbanization, such as "separation between two places", "soaring housing prices" and "short marriage life" faced by the only child generation after 1980s and 1990s when they entered the stage of marriage and love. Neither the unbreakable * * * same property system nor the clear separate property system was established to ensure the happiness of marriage. As Ye Lin said: "Legal coercion can't make a kind mother", and compulsory "possession of property" can't ensure that women get enough care and safety from marriage. When gender equality becomes the strong voice of family ethics in this era, property equality will surely become the value pursuit of marriage law. This new equality ethics and legal concept will gradually take root in people's hearts, and then become the legal belief of China people. Therefore, the publication of Interpretation III is the result of adapting to the changes of the times. It is a continuous rebellion against the feudal family culture and gender-dominated marriage of the same nation, and it can also continue to undertake the mission of strengthening women's independent personality and promoting gender equality.
The above introduction (asking questions) and legal comments can be used as reference.