离婚时夫妻共同财产分割研究
发布时间：2019-01-04 15:59
【摘要】：夫妻共同财产的分割是由夫妻身份关系的解除而引起的财产关系的结束,随着社会发展,夫妻共同财产的类型由简单变复杂、数量由少变多,夫妻共同财产的分割也显现出了多样化和复杂化。同时在夫妻共同财产分割中出现了亟需解决的问题,如公平分割原则的缺失、参考因素的不明确、股权分割的问题。为了解决部分问题,我国在2001年修正了《婚姻法》,最高人民法院相继出台了新的司法解释,包括2001年《关于适用中华人民共和国婚姻法若干问题的解释(一)》、2003的《关于适用中华人民共和国婚姻法若干问题的解释(二)》和2011的《关于适用中华人民共和国婚姻法若干问题的解释(三)》。但是由于法律本身存在的滞后性,实践中处理夫妻共同财产分割问题时不免存在争议。本文通过在中国裁判文书网调取离婚案件以调研的方式进行实证考察,提出若干涉及夫妻共同财产分割的不足,结合我国现行《婚姻法》及司法解释进行分析,从而提出其完善建议。本论文结构由两个部分构成——引言和正文,正文共计约两万字,其中正文部分分为四个部分。第一部分由典型案例引出问题。包括夫妻一方之家务劳动价值之承认与照顾女方原则之适用、夫妻共同财产分割之考虑其他因素、股权分割后股东资格能否被股东配偶取得的争论。第二部分我国夫妻共同财产分割之立法与司法情况考察。先简介我国夫妻共同财产分割原则、方法,对涉及夫妻共同财产分割的离婚案件进行实证调查,并对调查的结果进行分析、总结。第三部分外国夫妻共同财产分割立法之考察与评析。主要阐述国外夫妻共同财产分割的规定并对其进行评析,以此来作为借鉴,汲取有益的立法经验,为我国的夫妻财产分割提出建议。第四部分为我国夫妻共同财产分割制度的不足与完善立法的建议。主要以我国的夫妻共同财产分割制度的分割原则、股权分割的不足为入手点,提出包括将公平分割原则作为分割原则之一,夫妻一方在婚姻期间从事家务劳动对婚姻家庭的贡献、夫妻双方的生活现状等作为夫妻共同财产分割的考虑因素;股权分割规则改进等,结合我国的司法现状,提出完善相关法律规定的建议。
[Abstract]:The division of marital joint property is the end of property relationship caused by the dissolution of marital identity relationship. With the development of society, the types of common property of husband and wife change from simplicity to complexity, and the quantity from less to more. The division of husband and wife's common property also appears to be diversified and complicated. At the same time, there are some problems that need to be solved in the division of husband and wife's common property, such as the lack of the principle of fair division, the uncertainty of reference factors, and the problem of equity division. In order to solve some of the problems, China amended the Marriage Law in 2001, and the Supreme people's Court issued a new judicial interpretation one after another, including the 2001 interpretation of several issues concerning the Application of the Marriage Law of the people's Republic of China. Interpretation of some issues concerning the Application of the Marriage Law of the people's Republic of China (2) and 2011 (3) on the Application of the Marriage Law of the people's Republic of China in 2003. However, due to the lag of the law itself, there are disputes when dealing with the division of common property between husband and wife in practice. Based on the investigation of divorce cases in China's adjudicative documents network, this paper puts forward some deficiencies concerning the division of the common property of husband and wife, and analyzes the current Marriage Law and judicial explanation in China. And then put forward its consummation suggestion. The structure of this thesis is composed of two parts: introduction and text, the text is about 20,000 words, and the text is divided into four parts. The first part leads to problems from typical cases. It includes the application of the principle of recognizing and caring for the value of domestic work of one spouse, the consideration of other factors in the division of joint property between husband and wife, and the argument that the shareholder's qualification can be obtained by the shareholder's spouse. The second part investigates the legislation and judicature of the division of the common property of husband and wife in China. This paper first introduces the principle and method of the division of common property between husband and wife in our country, and makes an empirical investigation on divorce cases involving the division of joint property of husband and wife, and analyzes and summarizes the results of the investigation. The third part investigates and comments on the legislation of the division of foreign spouses' common property. This paper mainly expounds the provisions of the division of common property between husband and wife in foreign countries and makes an analysis of it, so as to draw lessons from the beneficial legislative experience and put forward some suggestions for the division of marital property in our country. The fourth part is the deficiency of the division system of husband and wife's common property in our country and the suggestion of perfecting the legislation. Taking the division principle of the common property division system of husband and wife in our country and the deficiency of equity division as the starting point, this paper puts forward the principle of fair division as one of the principles of division. The contribution of one of the spouses to the marriage and the living conditions of the husband and wife are considered as the factors of the division of the common property of the husband and the wife. According to the judicial situation of our country, this paper puts forward some suggestions on how to perfect the relevant laws and regulations.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D923.9;D920.5
本文编号：2400497
[Abstract]:The division of marital joint property is the end of property relationship caused by the dissolution of marital identity relationship. With the development of society, the types of common property of husband and wife change from simplicity to complexity, and the quantity from less to more. The division of husband and wife's common property also appears to be diversified and complicated. At the same time, there are some problems that need to be solved in the division of husband and wife's common property, such as the lack of the principle of fair division, the uncertainty of reference factors, and the problem of equity division. In order to solve some of the problems, China amended the Marriage Law in 2001, and the Supreme people's Court issued a new judicial interpretation one after another, including the 2001 interpretation of several issues concerning the Application of the Marriage Law of the people's Republic of China. Interpretation of some issues concerning the Application of the Marriage Law of the people's Republic of China (2) and 2011 (3) on the Application of the Marriage Law of the people's Republic of China in 2003. However, due to the lag of the law itself, there are disputes when dealing with the division of common property between husband and wife in practice. Based on the investigation of divorce cases in China's adjudicative documents network, this paper puts forward some deficiencies concerning the division of the common property of husband and wife, and analyzes the current Marriage Law and judicial explanation in China. And then put forward its consummation suggestion. The structure of this thesis is composed of two parts: introduction and text, the text is about 20,000 words, and the text is divided into four parts. The first part leads to problems from typical cases. It includes the application of the principle of recognizing and caring for the value of domestic work of one spouse, the consideration of other factors in the division of joint property between husband and wife, and the argument that the shareholder's qualification can be obtained by the shareholder's spouse. The second part investigates the legislation and judicature of the division of the common property of husband and wife in China. This paper first introduces the principle and method of the division of common property between husband and wife in our country, and makes an empirical investigation on divorce cases involving the division of joint property of husband and wife, and analyzes and summarizes the results of the investigation. The third part investigates and comments on the legislation of the division of foreign spouses' common property. This paper mainly expounds the provisions of the division of common property between husband and wife in foreign countries and makes an analysis of it, so as to draw lessons from the beneficial legislative experience and put forward some suggestions for the division of marital property in our country. The fourth part is the deficiency of the division system of husband and wife's common property in our country and the suggestion of perfecting the legislation. Taking the division principle of the common property division system of husband and wife in our country and the deficiency of equity division as the starting point, this paper puts forward the principle of fair division as one of the principles of division. The contribution of one of the spouses to the marriage and the living conditions of the husband and wife are considered as the factors of the division of the common property of the husband and the wife. According to the judicial situation of our country, this paper puts forward some suggestions on how to perfect the relevant laws and regulations.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D923.9;D920.5
【引证文献】
相关硕士学位论文 前1条
1 李定壬;离婚夫妻财产的认定及分割问题研究[D];广西师范大学;2017年
，本文编号：2400497
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