论离婚时婚前按揭房屋的归属与分割

发布时间：2018-03-03 00:38

本文选题：按揭　切入点：所有权归属　出处：《华东政法大学》2011年硕士论文　论文类型：学位论文

【摘要】：在房价飞涨的今天,不少人选择按揭贷款的方式购买房屋。如果夫妻一方在婚前通过按揭贷款的方式买房,婚后夫妻共同偿还贷款,且房产证在婚后取得的情况下,离婚时按揭房屋的所有权及房屋在婚后的增值通常成为夫妻争夺的焦点。而我国《婚姻法》及最高院司法解释对此并无明确规定,由此导致在司法实践中各地方法院对此问题做出不同判例,甚至在同一地区出现“同案不同判”的情况。而理论界对此问题也无统一认识。本文试图通过分析按揭购房流程,结合《中华人民共和国物权法》(以下简称《物权法》)、《中华人民共和国合同法》(以下简称《合同法》)、《中华人民共和国婚姻法》(以下简称《婚姻法》)的相关规定,得出按揭房屋在离婚时的所有权归属及婚后增值部分的分割原则。本文共有五章,全面系统的研究了婚前按揭房屋在离婚时的归属与分割问题。第一章结合司法实践中的一个具体案例导出离婚案件中婚前按揭房屋分割时的争议焦点,主要包括婚前按揭房屋的所有权之争,及婚前按揭房屋的增值的性质与分割之争。由于《婚姻法》及相关司法解释并没有对此问题作出明确规定,因此在司法实践中,目前该类案件仍处于无法可依的状态。第二章主要分析了目前各地方法院对此类案件审理时的不同规定及其法理依据。具有代表性的规定主要有:婚前按揭房屋为婚前个人财产,房屋增值部分不能分割;婚前按揭房屋为婚前个人财产,房屋增值部分可以分割;婚前按揭房屋为夫妻共同财产,房屋增值部分可以分割等做法。第三章通过学界对该问题的各种观点进行分析,并研究英美法系国家个人财产增值的理论及财产性质转化的理论,从婚前购房一方因《商品房买卖合同》而获得按揭房屋的所有权;婚前按揭房屋自始为个人财产,不因为婚姻关系而改变其归属;共同还贷行为并不能使一方个人财产转化为夫妻共同财产三个角度论证了婚前按揭房屋当属于婚前购买按揭房屋的一方。第四章从婚前按揭房屋增值的性质入手,从对按揭房屋增值进行分割符合“协力”原则;夫妻一方对对方个人财产增值有贡献时有权分享该增值的做法现代国家的立法趋势;对按揭房屋增值部分进行分割符合婚姻的本质及公平原则等角度来论证婚前按揭房屋的增值应认定为夫妻共同财产,并探讨了分割该增值的具体分割方法,以期公平合理地分配该增值。第五章对最高法院正在起草的《关于〈中华人民共和国婚姻法〉若干问题的解释(三)》(以下简称《婚姻法解释(三)》)各阶段的草案进行逐一评析,分析其合理与不足之处,最终对婚前按揭房屋在离婚时的分割问题提出合理的处理方式。
[Abstract]:In today's skyrocketing housing prices, many people choose to purchase houses by way of mortgage loans. If one spouse buys a house by way of a mortgage loan before marriage, the husband and wife jointly repay the loan after marriage, and the property title certificate is obtained after marriage. At the time of divorce, the ownership of the mortgaged house and the value of the house after marriage usually become the focus of contention between husband and wife. However, the Marriage Law of our country and the judicial interpretation of the Supreme Court have not clearly stipulated this. As a result, different local courts have made different precedents on this issue in judicial practice, even in the same area "different judgments of the same case". However, there is no unified understanding of the problem in the theoretical circle. This paper attempts to analyze the process of mortgage purchase. In conjunction with the relevant provisions of the Law of the people's Republic of China on Real Rights (hereinafter referred to as the property Law), the contract Law of the people's Republic of China (hereinafter referred to as the contract Law) and the Marriage Law of the people's Republic of China (hereinafter referred to as the Marriage Law), In this paper, there are five chapters, a comprehensive and systematic study of the premarital mortgage house in the divorce of the ownership and division of the problem. The first chapter combined with a specific case in judicial practice to derive the divorce cases in the division of premarital mortgage housing dispute focus, mainly including premarital mortgage housing ownership dispute, Because the Marriage Law and the related judicial explanation have not made the explicit stipulation to this question, therefore in the judicial practice, this kind of case is still in the unable to follow the state at present. The second chapter mainly analyzes the different provisions and legal basis of these cases in the local courts at present. The representative provisions are as follows: premarital mortgage house is personal property before marriage and the value-added part of the house can not be divided; The premarital mortgage house is the premarital personal property, and the value added part of the house can be divided; the premarital mortgage house is the joint property of husband and wife, and the value added part of the house can be divided. The third chapter analyzes the various viewpoints of this problem through academic circles, and studies the theory of personal property increment and the theory of property nature transformation in Anglo-American law system countries. The ownership of the mortgaged house is obtained from the party who buys the house before marriage because of the contract of purchase and sale of commercial housing, and the premarital mortgage house is personal property from the beginning, and does not change its ownership because of the marriage relationship. The behavior of joint repayment of loan can not transform one party's personal property into husband's and wife's common property, and proves that the premarital mortgage house should belong to the party who bought the mortgage house before marriage. Chapter 4th begins with the nature of the appreciation of premarital mortgage housing, and the division of the value added of the mortgage housing conforms to the principle of "cooperation", and the legislative trend of modern countries in which one spouse has the right to share in the increment of the other party's personal property; The division of the value added part of the mortgage housing conforms to the essence of marriage and the principle of fairness to prove that the value added of the premarital mortgage house should be regarded as the joint property of the husband and wife, and discusses the specific segmentation method of the division of the added value. With a view to a fair and reasonable distribution of the added value. In Chapter 5th, the draft of several issues concerning the Marriage Law of the people's Republic of China (3) > (hereinafter referred to as "interpretation of the Marriage Law (3) >), which is being drafted by the Supreme Court, is evaluated one by one, and its reasonableness and inadequacies are analyzed. Finally, a reasonable way to deal with the division of premarital mortgage house in divorce is put forward.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D923.9

【引证文献】