Construct the case of jointly owned property of the marital split system investigated
|School||Southwest University of Political Science|
|Keywords||Joint property of the spouses Marital properties division Joint tenancy The serious reasons Special matrimonial regime|
Along with our country’s economy develops rapidly, property does a more important role in people’s life, the disputes of the husbands and wives joint property become day by day complication. For various reasons, the husband or wife sue to the court for dividing their joint property without divorcing, so this kind of disputes appears more during the marital relationship continues than divorce. However, the traditional notion considered "marital properties can not be cut apart without the couple’s agreement ", besides, for the lack of regulations of the law, which leads to the perplexed between law abiding and judicature. Property law and family law of judicial interpretation (2011) were put in force, which shows the marital properties division were not only arise controversial in the theory, in legislation it also has been recognized. But it is still uncertain that the new judicial interpretation is perfect.The paper begins with a typical case which comes from the practice, based on the analysis of the case’s focus, the paper discussed the way to deal with this kind of cases. Otherwise, with respect to evaluate the shortcomings of our country’s current regulations, this paper to put forward some suggestions to improve the system.The paper divides into three parts, they are preface, the text and conclusion. Preface. This part mainly focuses on theoretical and practical value of the topic; introduct the general research situation of the topic.The text. This part is the main part of the paper, contains four parts:The first part is the introduction of the subject matter of the case, the details of the case, the court trial and the case’s controversy focus.The second part is the introduction of the different views and reasons of the case’s controversy focus problems. This part introduces the different recognize between theory and practice on three aspects. They are if the case could be actionable, the determination of the subject matter of the case and the theoretical controversy of marital properties division.The third part is the analysis of the case’s controversy focus. The author analyse the subject matter of the case, put forward to her own views and the reasons. From the following four aspects: one is the analysis of the actionable of the case, it meets the prosecution’s condition, and has its own regulation of the law; Two is the determination of the nature, through the introduction the elements of the three kinds disputes, they are the dominion of the couple’s joint property, dependency relations and the division of joint property when marriage continues, maintained the nature of the case is the division of joint property when marriage continues; Three is whether the joint property can be divided when marriage continues, if the joint tenancy is separable, the division of joint property of the spouses when marriage continues to be reasonable in theory, and in reality it is feasible; Four is the treatment of the case, in accordance with the existing law to identifing and dealing with the case, focusing on the analysis of " property law" ninety-ninth article and the" family law of judicial interpretation (2011)" the fourth article, pointing out the shortage which existing in dealing with such cases.The fourth part is the establishing of the system of the division of joint property when marriage continues. In view of the shortage of the current law, put forward some suggestions. Includes two aspects: One is the inspect of foreign law. According to the instruction and comparison of France, Germany, Switzerland, Russia and the United States Louisiana state’s law, analysis which part is worth to draw lessons from. Two is the instruction of China’s system of the division of joint property when marriage continues. This part combines the practice of justice, and based on the reference to the foreign legislation , put forward to some views to construct and consummate the system of the division of joint property when marriage continues. The author mainly from the entity law to proposed some views, introducing the special matrimonial regime as the basis, further analysis of the situations in which to divide the couple’s joint property , and clear the rang of property division and which system is applied when property has been cut apart. On the basis of this, to form a cultural proposal for the division of joint property when marriage continues.Conclusion. This part summarizes the full thesis, identified the case, and find the way to solve the problem.