An Investigation Of The Changing Patterns Of The Matrimonial Property Regime

The matrimonial property regime is an important component in the field of marriage and family in China,and its institutional design is concerned with the stability and harmony of the relationship between husband and wife in marriage and family,and even affects the marriage model and family structure.From the founding of New China to the introduction of the Civil Code in 2020,there is a clear path of change in the matrimonial property regime with the enactment of state-made laws.By comparing the contents of the 2001 Amendment to the Marriage Law and the 2020 Civil Code,it can be concluded that the matrimonial property regime has changed in the direction of more perfect contents and more inclined to marital protection in the past two decades,and further analysis reveals that in addition to the direct top-down promotion by the state in the form of laws,the judiciary also plays an important role in the overall process of institutional change.Taking the judicial practice of "remuneration for labor","division of marital property" and "joint debt of husband and wife" in the Civil Code as examples,we use the analysis method of empirical research to analyze the interaction between the law and the judiciary and the common situations in judicial trials.The interaction between the law and the judiciary,the common situations in judicial trials,the characteristics of judges’ decisions,and how the judiciary rises to legislation,etc.,are summarized into three types of institutional change patterns from the judiciary to the legislation,namely,"judicial experience to legislation,""judicial interpretation to legislation," and "judicial experience,judicial interpretation to legislation."judicial experience,judicial interpretation to legislation".Based on Lin Yi-fu’s theory of coercive change and induced change,we propose a new theoretical model of institutional change in China at this stage-"incomplete coercive change" to explain the feasibility and superiority of the judicial-to-legislative change model in China.Although compulsory change has the advantages of determining the direction of institutional change,providing institutional supply quickly and reducing social operation costs,it also has the disadvantages of insufficient or excessive institutional supply,which affects the operation of the system.The essence of this mode of institutional change is that China attaches importance to the absorption of judicial wisdom and the response to social needs when constructing the system,which is the embodiment of socialism with Chinese characteristics at the level of institutional self-confidence.