Research On The Legal System Of The Division Of The Common Property Of Husband And Wife In Marriage In China

With the development of China’s social economy,the consciousness of personal property between husband and wife is gradually enhanced,and the disputes of joint property between husband and wife are becoming more and more complicated,which leads to the demand of husband and wife to divide common property within marriage.Article 99 of the property law stipulates that in the case of "major reasons",the joint owners can request the division of the common property,which lays a theoretical foundation for the division of the joint property of married couples in China.Article 4 of 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(3)(hereinafter referred to as the judicial interpretation of the marriage law(3)for the first time stipulates the relevant rules for the division of the joint property of husband and wife within marriage,which breaks the traditional concept that the joint property of husband and wife can not be divided without divorce,and conforms to the social situation of increasing property disputes between husband and wife。On May 28,2020,the third session of the 13th National People’s Congress voted and passed the civil code of the People’s Republic of China(hereinafter referred to as the civil code).Article 1066 of the marriage and family series is slightly revised on the basis of Article 4 of the judicial interpretation of the marriage law(3),which formally defines the division of marital joint property as a legal system of marital property It can be seen that the legislators attach importance to solving the property disputes between husband and wife and relieving the property rights and interests of the disadvantaged party on the premise of not dissolving the marital relationship.At the same time,it also provides a more reasonable opportunity for the development and improvement of the marital joint property division system in China.Based on the current legislation and judicial application status of the division system of marital joint property in China,the author will draw on the advanced experience of comparative law,and put forward suggestions to refine and supplement the relevant provisions of the system,so as to promote the good operation of the system and better realize its free,equal,fair and safe system value.This paper will be discussed from the following four parts:the first part expounds the basic theory of the division of common property within marriage in China.Firstly,it briefly describes the basic problems of the division of common property within marriage in China,including its meaning and characteristics,theoretical basis,right attribute and discrimination with related concepts.Secondly,it analyzes the value orientation of the system of division of common property within marriage in China.The second part sort out the relevant legislation and judicial application status of marital joint property division in China.Through analysis and comparison,it concludes that after the implementation of the civil code,the system still needs to solve some problems in the operation process,that is,the deficiencies,including the defects in the provisions of the applicable situation,lack of the principle of division and unification,unclear legal effect and lack of Specific measures to protect the interests of creditors.In the third part,the author makes an investigation and reference on the legislation of the division of common property within marriage in other countries and regions from four aspects:the applicable situation,the applicant,the legal effect and the protection measures for creditors.In the fourth part,in view of the shortcomings of the system of the division of marital joint property in China,combined with the advanced experience of comparative law,it proposes to further supplement and refine the relevant judicial interpretation to promote the good operation of the system in China,and puts forward specific ideas and suggestions,that is,to clarify the principle of division,supplement and refine the specific applicable rules,and clarify the specific application rules Specific measures to protect the interests of creditors,in order to enhance operability and better solve practical problems.