On Methods of Premarital Mortgaged Property of Divorce Disputes
|School||Dalian Maritime University|
|Keywords||Matrimonial regime Mortgage Payment Legislative Process JudicialPractice Proposal Improvement|
The degree of rounded legislation is confined by the economic development level of society. The property’s insufficiency lags behind the legislation of the property law and the inactive economy lags behind the legislation of the contact law, as far as to the special property law-marital property. The marital property institution draws more and more attention in our country. The legislature can put the controversial issue on the back burner or make it unset up rules temporarily. But the justice must deal with the disputes in real time. Regarding the different processing opinions on the mortgage real estate division among the courts in various regions, it illustrates the differences of court practice and theoretical knowledge in different areas. In addition, it reflects the conflicts of relevant legal theory and legal provisions, which is with the legislation adjustment necessarily. The Judicial interpretation of the Supreme People’s Court has unified the differences inside counts, however, in some degree, the unitization means to avoid bigger disputes and sacrifices the operability in trial practice. After all, it provides a discussion foundation on it.This paper is divided into three parts:the first part is about the overview of China’s current marital property and the housing mortgage institution. The way of making division of pre-marital property should be applicable to the provisions of the marital property, which requires the knowledge of our current marital property institution and meanwhile define the scope and meaning of housing mortgage in pre-marital property. The second part is to introduce premarital mortgage housing disputes both in theory and the practice ways. In theory angle, the author introduced three kinds of views at this point and his understanding is included. In practice angle, the author explores the different approach applied by courts in different areas and emphasis the latest judicial interpretations of the supreme people’s court on the issue along with author’s opinion. The third part is for judicial interpretation in judicial practice to the possible problems and puts forward the solution to practice in the specific operation method..