| As the one type of matrimonial property systems,and the corresponding to normal marital property regime,usually during the duration of the marriage relationship in the process of sharing the common property of husband and wife,without statutory basis,in accordance with the provisions of the law directly or couples party application and declared by the court,the revocation of the original common property system reform property system respectively.As a system related to the transformation of marital property system,the purpose is to seek the balance of protection of interests of all parties.In addition to the conclusion,this paper is divided into six parts with a total of more than 50,000words:The first part is the raising of the problem.Current debts of husband and wife decided that rules apply,"a private property of husband and wife can’t repay the executable common property when the personal debt" problem,"not analyse production and execution" in the judicial practice caused conflicts with current debt rules legislation purpose of husband and wife,this perfect.this unanswered,and set up exceptional marital property system is the only way out of the dilemma.The second part is the research on the basic problems of the exceptional marital property system.It defines the characteristics of the exceptional marital property system,and then defines the concept of the exceptional marital property system,which is essentially a "relief system for the right to divide the marital common property under special reasons".It is feasible for China to construct the exceptional marital property system from the perspective of the relatively perfect system outside China,the theoretical research of the exceptional marital property system in Chinese academic circles,and the current social reality conditions.The third part is the legislative system construction of the exceptional marital property system In China.Our current marital analysis problems scattered system and fuzzy production rule,combined with the relative laws and regulations outside and comparative study of the draft civil code of expert opinion draft and the actual situation in our country,to build exceptional marital property system in our country legislation style,place it in the third chapter "civil code" marriage and family make up under "relationship" in 1066,to replace the current marital analysis production rules;The content should cover the whole process from the beginning to the end of the property system.The fourth part,the legal reasons for the application of the exceptional marital property system in China.Our current marital analysis made rules for narrow and tight,exceptional marital property system,without statutory basis of legislation in our country,should adopt "listed" legislative model,and to "lead to the common foundation collapse" as the standard statutory basis,for the future of natural person bankruptcy system cohesion,"one party by the bankruptcy of husband and wife" should be as applicable statutory basis,of course,However,the specific legal reasons for the declaration of application should not be completely accepted as extraterritorial and expert opinions on the draft of the civil code,but should be stipulated of the six types.The fifth part,China’s exceptional marital property system start procedures and termination procedures.Combined with the comparative study of foreign relevant legislative cases and expert opinions,considering that the third party’s claim right of the marriage relationship,such as the creditor,may interfere with the marriage parties’ independent management of the family,the subject entitled to start the exceptional marital property system is limited to "the no-fault husband and wife and their legal representatives";As for the termination procedure,if the declaration is applicable,the subject of the right of claim is limited to "one of the couple without fault";If applicable,the termination shall be subject to the application of the spouse without fault and the consent of the creditor,and shall be declared by the court.The sixth part,the legal consequences of applying the exceptional marital property system in China.The current marital birth control rules in China have the defects of unclear division of common property and no effect of separate property system after application.When constructing the legal effect of the exceptional marital property system in China,the effect of the separate property system will be generated after the application of the exceptional marital property system.Of course,the applicable internal effective time should refer to the Swiss practice of "the date on which one party is declared bankrupt",and the applicable internal effective time should refer to the German practice of "the date on which the judgment becomes effective".The method of "announcing or informing the third party" should be adopted for reference in Germany.In addition,the liquidation and division of marital property and the bearing of family maintenance expenses should be clearly stipulated under the matrimonial property systems. |
