Analysis On The Ownership And Compensation Of Premarital Mortgage House Purchased By One Spouse

In the market conditions of high housing prices,the mortgage is the first way to buy the house.Due to the large amount of mortgage loans and long repayment time,it often happens that the down-payment party will marry within the loan period.Owing to changes in personal relationships,the ownership of mortgage houses will also be affected.This paper discusses in detail the ownership and compensation of premarital mortgage house purchased by one spouse.Article 10 of the <Interpretation(III)of the Supreme People's Court of Several Issues on the Application of the Marriage Law of the People's Republic of China > stipulates the disposal of the premarital mortgage house purchased by one spouse.If the two parties fail to negotiate,the house can be awarded to the registered party and the registered party should compensate the non-registered party.Thus,in terms of the determination of ownership,Article 10 of <Judicial Interpretation of theMarriage Law III> does not specify the ownership of such mortgage house,nor does it indicate under what circumstances such mortgage house can be regarded as the joint property of husband and wife.In terms of compensation,the attribution of housing value-added and the specific calculation method of compensation are also not clear.On the ownership and compensation of the premarital mortgage houses purchased by one spouse,the jurisprudential view is also varied.There are different opinions on the determination of ownership,such as personal property theory,common property theory,conditional common property theory and so on.There are also different opinions on the nature of housing value-added.In the aspect of compensation,there are various methods of calculation in judicial practice,and there is no unified method of calculation.Therefore,the ownership and compensation of the mortgage house purchased by one spouse before premarital marriage has not been effectively solved.How to reasonably solve the problem of ownership and compensation of mortgage house purchased by one spouse before marriage is the purpose of this paper.By sorting out and summarizing the different views of scholars on the ownership of mortgage house purchased by one spouse before marriage,and analyzing the main reasons for the different views,this paper draws a conclusion that the mortgage house purchased by one spouse before marriage is in principle the personal property of the firstpayer,and under certain conditions is the joint property of husband and wife.After solving the ownership problem of the mortgage house purchased by one spouse before marriage,the compensation problem of such mortgage house is analyzed.Mortgage houses identified as joint property of husband and wife should be divided according to the principle of division of joint property of husband and wife and the particularity of mortgaged houses.For mortgaged houses which are deemed to be the personal property of the first payer,through the analysis of different views on housing value-added,it concludes that housing value-added is an extension of the value of the house price itself.Through the analysis of different calculation methods in judicial practice,the reasonable compensation formula of the down-payment party to the non-down-payment party is obtained.There are three chapters in this paper,analyzing the ownership and compensation of the mortgage house purchased by one spouse before marriage.The first chapter defines the specific scope of the mortgage house discussed in this paper,and makes it clear that the mortgage house discussed in this paper is a house purchased by one spouse by way of mortgage before marriage registration,and the property right of the house is registered in the personal name,and the mortgage is repaid by the joint property of the husband and wife during the marriage.Then throughcombing the ownership and compensation issues in judicial practice,summing up the main problems that this article is trying to solve about one spouse before the purchase of mortgage house.The second chapter mainly analyzes the ownership of the mortgage houses purchased by one spouse before marriage.Through the analysis of the main reasons of personal property theory,common property theory and conditional common property theory,the author draws the rationality and deficiency of these views,and then draws the conclusion:If the couple can not reach an agreement,the joint property used to repay the loan is equal to or greater than the expenditure used by the down-payment party to purchase the real estate before marriage(down payment,premarital repayment,deed tax,stamp duty,business tax,etc.),the real estate shall be the joint property of the couple.The third chapter mainly analyzes the compensation problem of the mortgage house purchased by one spouse before marriage.Firstly,under the condition that the mortgage house purchased by one spouse before marriage is regarded as the joint property of the spouses,the first payment is divided into the first payer,and then the mortgage house is divided according to the principle of the division of the common property.Then it focuses on how to protect the interests of bank creditors and how to follow the principle of efficiency value.Then it analyzes the compensation problem of the mortgage house purchased by one spousewhich belongs to the personal property before marriage.On the qualitative aspect of housing value-added,the author thinks that the value-added of mortgage house should be the extension of the value of the housing itself and the down-payment party should compensate the non-down-payment party based on the principle of fairness and the principle of taking care of the interests of women.Finally,through the analysis of different calculation formulas,it concludes that it is more reasonable to compensate the amount = the joint repayment of the principal and interest÷(the market price of the house at the time of marriage + Interest on joint repayment of loans during the period of marriage)*(the market price of the house at the time of divorce-the market price of the house at the time of marriage)* 50% + the joint repayment of the principal and interest * 50%.And the author points out that according to the principle of taking care of woman's rights and interests,50%-60% inclined protection should be given to woman's interests.