On the Total Equity Segmentation of the Divorced Husband and Wife
|School||South China University of Technology|
|Keywords||Divorce Matrimonial equity Equity segmentation Law and Economics|
With the development of China’s socialist market economy, the reform of housing system and the gradual maturity of the investment market, the structure of jointly owned property has been multifarious, especially those properties with high value like equity and real estate take a large proportion in jointly owned property. In the divorce cases, dissolution of marriage is no longer the principal contradiction of the case, the problem is mainly concentrated in the partition of jointly owned property and child support issues. And the partition of jointly owned property is mainly focused on segmentation of real estate, equity, etc. This thesis will expand the discussion around the problem of matrimonial equity segmentation in divorce. As a result of matrimonial equity segmentation always leads to the transfer of equity, not only involve the interest of the couple, but also other shareholders and the enterprise. So pay much attention to the study of matrimonial equity segmentation in divorce has very important practical significance no matter for the protection of individual rights or the well operation of whole economic society.Although the Interpretation of Several Issues of the "Marriage Law of the People’s Republic of China "(b)、(c) and the new " Company Law " have made some provisions for the transfer of matrimonial equity in some cases, but they are far unable to guarantee the demands of the parties in a dispute in real life. This thesis is based on the popular Law and Economics theory currently, and apply the research approaches of Law and Economics to analyze the legislative situation, judicial situation and existed difficulties in the judicial practice of the matrimonial equity segmentation in divorce. On this basis to discuss and propose the regulations of the matrimonial equity segmentation in divorce should take "rational economic man" as a starting point, with the characters of justice and efficiency at the same time. According to this paper, in today’s increasingly rapid development of market economy, as a rational subject, personal or enterprise, all wish to maximize the utilization efficiency of capital. In the future, the legislations should pursuit fairness and justice, in addition, they should also have the function to guide the social subjects in accordance with the principles of optimal allocation of resources and maximize the benefits to make a rational choice. This thesis is divided into four parts in addition to conclusions.At the beginning of this paper, it proposed the problems to be discussed:At the present time, the Marriage Law or the new Company Law doesn’t have specific and highly operative regulations about the matrimonial equity segmentation in divorce. Then according to the theory of Law and Economics, what can we do to make the legislations about the matrimonial equity segmentation in divorce perfect, in order to achieve optimal allocation of resources and maximize the benefits of everybody.The second part is mainly to introduce the theory of Law and Economics and define the matrimonial equity segmentation in divorce. First to make an introduction of the basic theories of Law and Economics and point out the significance of using such kind of method to do the jurisprudential study. Then define the related concepts about the matrimonial equity segmentation in divorce and analyze the existence, legal feature and severability of matrimonial equity. Make it clear that matrimonial equity has some features which made it different from general jointly owned property and the reality of segmentation. Laid a theoretical foundation for the further analysis.The third part is to start from the current situation of the matrimonial equity segmentation in divorce. It introduces legislative situation, judicial situation, the widespread difficulties in judicial practice of the matrimonial equity segmentation and analyze them from the perspective of Law and Economics. We are sure about the current positive aspects of the research about the matrimonial equity segmentation in divorce, meanwhile, point out the imperfections.The fourth part is based on the results of summing up the preceding analysis and put forward the proposal about the matrimonial equity segmentation in divorce according to the Law and Economics theory. First to call for some changes in legislation thinking. Based on the introduction of the Law and Economics thinking and taking "rational economic man" as a starting point, to pursue the maximum efficiency of law application. In addition to the purpose of fairness and justice, we also need to focus on optimal allocation of resources and maximization of benefits. Then put forward relevant legislative proposals in response to the widespread difficulties in current judicial practice. In the hope of contributing a modest force to the improvement of relevant laws and regulations.