On Legislative Construction Of Special Matrimonial Regime

Special matrimonial regime is a system which regulates matrimonial property relation under special circumstances, an integral part of legal system of matrimonial regime, and it is of momentous significance for protecting the property rights of one partner and protecting transaction security. It is a property system compared with the normal matrimonial regime. When the statutory special causes happen during the marriage, separation of property regim is applicable certainly by law, or the former matrimonial regime is revoked and changed into separation of property regime by the court when one partner or the third party is prosecuting. There are many civil law countries which stipulates special matrimonial regime in their marriage legislation, but our country's"marriage law"only stipulates the normal matrimonial regime, not special matrimonial regime. In the era of planned economy, the limited personal property, the single range of property, the simple matrimonial property relation, the legislation needed accordingly is concise, in principle. But with the rapid development of the market economy and greatly improvement of the material standard of living, personal property enriched gradually, the range of property is very diverse, and matrimonial property relation becomes more complicated than before, so we need complete and detailed legal provisions,even more, the legal provisions should anticipate the future property relationship in order to adapt to the expanding economy. In view of the current situation of economic development, we must consummate legal provisions of matrimonial property relation. Special matrimonial regime arises in this context, it reflects current matrimonial property relation, also adapts to the expanding economy, and protects the property rights of couple and the third party comprehensively. In this paper, the main part is divided into three sections to discuss.The first part of the article is about investigation of basic theory of special matrimonial regime. This part is divided into three steps. The first step introduces the meaning of special matrimonial regime, including two small questions, concept and characteristic. In my opinion, special matrimonial regime is applicable under the statutory special circumstances and changes the former matrimonial regime statutorily into separation of property regime and gives one partner the rights. The second step analyzes the nature of special matrimonial regime. When matrimonial property relation is in the special circumstances, special matrimonial regime is applicable, and is set for protecting the property rights of one partner and relieves the property rights of one partner under the precondition of not dissolving marriage. In my opinion, its nature is a relief system which relieves the property rights of one partner. The third step explores and generalizes the detailed conditions of emerging of special matrimonial regime. The conditions include: the ideologic condition of freedom, equality and independence; the system condition of separation of property regime and community property regime; the family condition of diminishing family formation; the social condition of the high-speed economic development and the pluralism property.The second part of the article investigates deeply the necessity and the feasibility of special matrimonial regime's legislation. First of all, we illuminate the necessity of legislation detailedly from the following six aspects for discussion. First , the requirement of protecting the property rights of one partner. When the marriage appears special circumstances, matrimonial property relation will become more and more complicated. But special matrimonial regime gives the path to solve, and endues party with right of revocation of the legal or agreement property regime in order to divide community property and protect the property rights of one partner. Second, the requirement of protecting transaction security. Because our country fails to establish publicity system of matrimonial property, the third party have no way of telling property status who trades with one partner. If the statutory special causes happen, this situation will worsen. Special matrimonial regime can solve this situation to protcet the rights of the third party. Third, the requirement of realizing compensation for damages within marriage. If tort happenes between husband and wife during the marriage, this system can divide community property timely in order to realize compensation for damages within marriage. Fourth, the objective requirement of separation. Separation will arose complex property relation, but special matrimonial regime can instill energy into the property relation to reduce disputes. Fifth, the requirement of consummating legal system of matrimonial regime. The introduction of special matrimonial regime will enrich matrimonial regime in order to make its structure more complete and make legal system more consummate. Sixth, the requirement of protecting women's lawful rights and interests. Women need more legal protceting as disadvantaged groups, this system relieves their property rights by giving wife the right of revocation. Next, we analyze the feasibility of legislation detailedly from the following four aspects for discussion, the accumulation of legislation resources and the support of correlation theory in our country and abroad, the chance of enacting the Civil Code, the proper social foundation, the presence of judicial exemplification in real life. Through sufficient demonstration above, in my opinion, it is necessary and feasible to stipulate special matrimonial regime under the current economic conditions.The third part of the article is about status analysis of special matrimonial regime. First of all, we inspect and analyze the good legislations in our country and abroad. Through comparing and analyzing special matrimonial regime of France, Germany, Italy, Switzerland and Taiwan province of China, in my opinion, matrimonial regime consists of three parts: general provisions, the regime of statutory matrimonial property, contractual regime. But different country has different arrangement. There are general provisions which stipulate matrimonial property relation principally in matrimonial regime in France and Italy, while there are not concentrative general provisions of matrimonial property relation in Germany. Matrimonial regime doesn't stipulate solely special matrimonial regime in Germany, France and Italy, but it stipulates this regime under a type of matrimonial regime and can not extrude its independent legal status. There are different legislations in Switzerland and Taiwan province of China. First, stipulate general provisions of matrimonial regime, and even more, the regime of statutory matrimonial property and contractual regime were stipulated parallelly, which extrudes the division of both and also doesn't reduce the status of all kinds of contractual regimes. Second, special matrimonial regime is placed in general provisions of matrimonial regime, so that special matrimonial regime, the regime of statutory matrimonial property and contractual regime are parallel. This can make special matrimonial regime relatively independent, not belonging to a type of matrimonial regime, in order to reflect relatively independent legal status of special matrimonial regime. Next, expounding the specific reasons of stipulating special matrimonial regime in general provisions of matrimonial regime. In my opinion, special matrimonial regime has a close relation with the change of matrimonial regime, and its nature of relief coincides with general provisions. Special matrimonial regime is placed in general provisions, which corresponds with its meaning and consummates the legal system of matrimonial regime and reflects its relatively independent legal status. At last, we arrange compendiously special matrimonial regime.