Research On Division Of Community Property In Marital Bankruptcy From The Community Property System

Since the implementation of the Shenzhen Special Economic Zone Personal Bankruptcy Regulations,more and more judicial precedents have shown that one of the spouses has applied for personal bankruptcy during the marriage relationship.Due to China’s insufficient experience in personal bankruptcy legislation and incomplete legal norms,there is still controversy over the handling of debts in personal bankruptcy cases of one of the spouses in marriage.This involves the collision of property law and identity law,and involves the interests of marriage,family,society and individuals.When marriage and family law and personal bankruptcy law collide,how to deal with it not only reflects the relationship between civil law and commercial law,but also reflects the deep cooperation between modern society and business.Starting from the personal bankruptcy case in Shenzhen Special Economic Zone,this paper intends to introduce the problem of division of personal bankruptcy common property within marriage from the perspective of the joint property system of husband and wife by comparing the different scope of bankruptcy estates in the cases,and conduct relevant legal analysis from the scope of bankruptcy estate,the division of joint property of husband and wife in personal bankruptcy,and the agreement on the division of marital property in personal bankruptcy,and finally put forward suggestions for improving the division of personal bankruptcy common property within marriage from the perspective of the joint property system of husband and wife.This article consists of three parts: the first part introduces the bankruptcy settlement case of Wei and the bankruptcy liquidation and reorganization case of Lin Moumou,and raises the question of whether the bankruptcy estate includes common property and how to divide the joint property of husband and wife in personal bankruptcy through the different scope of the debtor’s bankruptcy estate in the two cases.The second part provides a jurisprudence analysis of the raised questions.To discuss the basic theories of the joint property regime of husband and wife and individual bankruptcy,analyze the scope of bankruptcy estate under the joint property system of husband and wife from the perspective of the matrimonial property regime,the legislative evolution of the marriage law,the purpose of individual bankruptcy legislation,and the rules for the settlement of personal debts under the joint property system,and analyze the issue of the division of the joint property of husband and wife in personal bankruptcy from the aspects of the conflict between the rules of the property law and the matrimonial property system,and the necessity and feasibility of dividing the joint property of husband and wife within marriage.and discuss the validity of a marital property division agreement in personal bankruptcy.The third part puts forward relevant suggestions for improvement on the basis of legal analysis.That is,personal bankruptcy should limit bankruptcy to individuals and not to all of the joint property of the husband and wife;The improvement of the division of joint property of husband and wife in personal bankruptcy should add in Article 1066 of the Civil Code the legal grounds for one of the spouses to apply for the division of joint property within marriage when one of the spouses is bankrupt,and this provision cannot add a fallback clause to prevent the abuse of discretion and excessive impact on marriage and family relations;The scope of the division of joint property should be clarified,and after the division of the joint property of husband and wife,in principle,the separate property system should be implemented;It is clarified that the right of revocation in bankruptcy is applicable to the marital property division agreement.