Establish The Extraordinary Property Regime Of China

The marriage law of the People’s Republic of China stipulates the marital property system with three laws,which statically confirms the family property rights.However,there are no provisions on the exercise of joint property rights,internal and external responsibilities of family property and other important issues.When the husband and wife cannot reach an agreement on the exercise of joint property rights,the law cannot provide solutions.From this point of view,the current marriage law is lack of dynamic adjustment of marital property relationship.In order to maintain the stability of the conjugal relationship and meet the needs of family life,the identity relationship and the property relationship should be consistent during the marriage.When joint matrimonial property is chosen,it is generally not allowed to divide the community property during the marriage.However,in modern society,the individual awareness is getting stronger and economic independence is the pursuit of most people.Overemphasis on the joint ownership of marital property may hinder the full development of individual talents or fail to make the best use of property,which may lead to marital property conflicts.Let alone intramarital infringement,especially domestic violence incidents often occur,one party wants to protect his rights without dissolving the marriage.At this time,if the property is not allowed to be divided within the marriage,even if the court ruled that the other party constitutes a tort,the victim can not get real relief.The unity of marriage does not mean that individual independence is fully absorbed,and the marriage law is necessary to guarantee the property rights of one spouse.There is a great dispute in the theoretical field about whether the community property can be divided during the marriage.The emergence of article 4 of the thirdjudicial interpretation of the marriage law puts an end to this dispute.This judicial interpretation shows that the law has been concerned about the marital property conflict,which is a small step towards the extraordinary property regime.However,it is also necessary to recognize the shortcomings of the current property system.They are mostly shown in the following questions: the scope of the subject of the application should be expanded,the reasons for application should be increased,the scope of common property divided is not clear,and the marital property relationship after the division of property is not clear.Therefore,it is impossible to realize the transformation of property system in marriage only by a few laws.It is necessary to set up extraordinary property regime to perfect and safeguard the existing common property system.Extraordinary property regime is a relatively complete system in civil law countries.The research on this system in China is relatively few,and it is not mentioned in the law.When analyzing the current marital property system,many scholars have pointed out that extraordinary property regime is needed to make up for the deficiency of community property system.However,there are few systematic discussions and special studies on this system.Therefore,this paper hopes to be able to analyze the transformation of common property system in marriage comprehensively.Combining with the cases in judicial practice,this paper analyzes the three main problems of whether the property can be divided during the marriage,the value of the the extraordinary property regime in marriage and how to construct the extraordinary property regime in China.The main body consists of four chapters.The first chapter analyzes the rationality of dividing community property by studying the views of different scholars.The second chapter mainly introduces the concept,characteristics,relationship with the common property system,legislative constraints and functions of the the extraordinary property regime.The third chapter mainly analyzes the legislative status of the extraordinary property regime in marriage.The fourth chapter designs the extraordinary property regime from five aspects: the legislative mode,the scope of application,the claimant,the application mode and the institutional effectiveness.