Study On The Regime Of Matrimonial Property

The regime of matrimonial property is the core content of the law which adjusts couples’relations on property. It decides the existence of economic foundation, and the domestic economy functions of the effectiveness. It’s closely related to a couple’s economic support and property inheritance, etc. This article intent on studying and thinking the legislation problem of the regime of matrimonial property, and gives the legislative proposes. It’s composed by five chapters, apart from the preface and the conclusion.The first chapter, probes into the legislation history on Chinese marriage, family property and matrimonial property. This chapter reviews the legal system and rules of propriety concisely, emphasizes and scans its legislative concepts. The legislative concepts of ancient Chinese are: 1) maintain family ownership of private property, family plays an important role in a single family, the single family interests is bound to family benefits in certain extent; 2) maintain cohabitation and common property, the father has absolute power to property, sons share the heirship of property, sons inherit father’s property, wives inherit husbands’property; 3) maintain a couple’s special property right, marriage makes husband and wife one flesh, the wife can have some private property. The legislative concepts of this period were produced because the relative system structure was the mirror of the patriarchal clan system; it was also the reflection of Confucian’s ideas and methods to maintain social order through ethnics. Its positive aspects are: 1) protect the weak, the family take on responsibilities of social security; 2) protect the humble and the young, safeguard the wife’s live rights depend on family property. The concepts of modern Chinese are: 1) abolish the feudal patriarchal, respect family members’rights; 2) establish marital property system, respect agreement of property; 3) improve man and woman’s equal status, respect the wife’s personal property. Its positive aspects are: 1) emphasize civil and commercial customs’investigation, seek the legal regulations which meet china’s national conditions; 2) protect the wife’s property rights, seek a complete legal system.The second chapter inquires into the contemporary foreign countries matrimonial property legislation and legislative concepts. It can be divided into separate property system which emphasizes individual-oriented, and common property system which emphasizes society-oriented from statutory property system angle. Property legislation, particularly the statutory property system reflects the legislative concepts in contemporary countries, it can be summed up in the following five : 1) respect individual property rights; 2) party autonomy; 3) husband and wife have equal status; 4) maintain trade safety; 5) protect the disadvantageous’interests. Examining the concepts, it’s different from a pure identity law and the other property legislation, and should give consideration to both personal interests and social interests.When cooperate husband, wife and marriage’s interests, we should abide by the civil law’s legal value concepts, justice, equality, free and efficiency, and also consider the identity nature of matrimonial property system.The third Chapter summarizes matrimonial property legislation change in our country since its founding, and examines the legislative concepts. The legislative concepts are changing greatly, the idea to protect private property continually improves, and more and more people accept the marriage contract theory, highlight the efficiency and fairness of value concepts. The existing legislation shows the legislative principle of property system: 1) man and woman have equal status; 2) party autonomy; 3) protect individual property rights; 4) protect women’s legal rights and interests; 5) protect trade safety. With the times progress and develop, our traditional family structure, social function, and family moral and ethical values have changed fundamentally, the existing legislation set the dispute to a certain degree, but it still has some limitations. This chapter specially scans the civil law’s legal value concepts, justice, equality, free and efficiency, analyzes the principle of“protect the legitimate rights and interests of women”, tells the current status of women, and the difference between the terms“look after”and“protect”.The forth chapter gives the legislation proposals on the basis of thinking the legislative concepts of both ancient and modern, Chinese and foreign countries. The current marriage law has only three legal provisions on matrimonial property, the legislation defects of legislation system, statutory property system and agreed property system exist in it. This chapter put forward the proposals to the above legislative deficiencies: 1) in the legislative system, add general principles; 2) in the statutory property system, establish the special relief system to divide common property--unusual statutory property system, establish the division rules of common property, establish the guidelines and compensation rules to distinguish between common property and personal property, clear the rights and restrictions of common property and personal property, clear the debt and the payment rules of personal debt and common debt; 3) in the agreed property system, stipulate the essential and formal requirements, clear its types and concrete content, stipulate the agreed time and the effective time, give its change and recall stipulations. In the end this chapter put forward some thinking and suggestions to <Consultative Paper of Marriage Law’s Judicial InterpretationⅢ> .The last part is the conclusion, which concisely summarizes the main points in this article.