婚姻法司法解释三第七条之评析

发布时间：2018-05-28 10:50

本文选题：父母买房 + 归属　；参考：《重庆大学》2013年硕士论文

【摘要】：2011年8月13日，《最高人民法院关于适用〈中华人民共和国婚姻法〉若干问题的解释（三）》正式施行。该解释一经颁布，即引起了广泛关注，其中第七条更是受到专家学者和市民们热议。在处理父母出资购买的房屋之归属时，作为婚姻家庭居所用处的房屋所有权归属的认定一直是司法实践中需要攻克的一个难题。上个世纪九十年代开始，我国的家庭住房制度不断改革，随着经济的发展，持续升温的房地产价格也备受关注，普通家庭的最具价值的财产已经由房产占据。在房产价值不断提高的同时，普遍化的按揭供房、复杂化的产权情况、频繁化的婚变关系发生，围绕房屋产权归属的争议也日趋增多。我国立法上关于父母出资购买的房屋归属的规定还有待完善，探讨父母出资购买的房屋认定具有理论意义和现实意义。本文除前言、结语外，正文包括四部分。第一部分《婚姻法解释（三）》第七条概况。父母出资购买的房屋的法条规定和发条上的含义，以及父母出资购买的房屋在我国的婚姻家庭中的社会意义。中国人自古就热爱自己的土地和房子。强烈的归属感让房屋在我国婚姻家庭中占据了重要位置。我国房屋的价格不断上涨，使得房屋成了家庭财富的一大象征。第二部分婚后父母出资买房之归属存在的问题。《婚姻法解释（三）》第七条的规定在立法效果上与构建和谐社会目标相违背，且侵犯了婚姻法规定的夫妻共同财产权益，，既不符合我国现存的家庭模式，也不符合婚姻家庭传统观念。第三部分婚后父母出资买房之归属的立法应遵循的观念和原则。目前是要构建以家庭为基础的和谐社会，在立法方面就应当考虑婚姻契约观、婚姻家庭伦理观和婚姻家庭价值观等观念。结合我国的实际，认为在司法实践中应当遵循均等原则、照顾女方与子女权益的原则、人身关系与财产关系的均衡原则和尊重现有家庭形态与传统观念等原则。第四部分婚后父母出资买房之归属的司法实践建议。针对婚后父母出资买房之归属认定在我国司法实践中出现的疑难争议问题，并且应当做到注重在婚姻家庭中应以感情为基础，对家事劳动的肯定、对无产权的无过错方进行补偿和对购房方父母尽到应有的赡养义务的无产权方进行补偿，以期对完善我国父母出资购房的认定有所助益。
[Abstract]:On August 13, 2011, the Supreme people's Court's interpretation of the application of the Marriage Law of the people's Republic of China (3) came into effect. Once promulgated, this explanation has aroused widespread concern, among which Article 7 has been discussed by experts and citizens. In dealing with the ownership of houses purchased by parents, it is always a difficult problem in judicial practice to determine the ownership of houses which is used as the residence of marriage and family. Since 1990s, the family housing system of our country has been reformed. With the development of economy, the rising real estate price has been paid more attention. The most valuable property of ordinary family has been occupied by real estate. At the same time, the value of real estate is constantly improved, the property rights are complicated, the relationship between marriage and marriage occurs frequently, and the disputes about the ownership of housing property rights are also increasing day by day. The regulations on the ownership of houses purchased by parents in our country need to be perfected. It is of theoretical and practical significance to discuss the confirmation of houses purchased by parents. In addition to the preface and conclusion, the text consists of four parts. The first part is the interpretation of Marriage Law (3). The meaning of the stipulation and the clockwork of the house purchased by parents and the social significance of the house bought by the parents in our country. Chinese people have loved their land and houses since ancient times. The strong sense of belonging makes the house occupy the important position in the marriage family of our country. The rising price of houses in our country makes houses a symbol of family wealth. The second part is about the problems existing in the ownership of the purchase of house by parents after marriage. The provisions of Article 7 of the Marriage Law are contrary to the goal of building a harmonious society in terms of legislative effect, and violate the common property rights and interests of the husband and wife as stipulated in the Marriage Law. Not in line with the existing family model, nor with the traditional concept of marriage and family. The third part is about the concept and principle that the parents should follow. At present, it is necessary to construct a harmonious society based on family. In the aspect of legislation, we should consider the concept of marriage contract, marriage and family ethics, marriage and family values, etc. According to the reality of our country, we should follow the principle of equality in judicial practice, the principle of taking care of the rights and interests of women and children, the principle of balance between personal relationship and property relationship, and the principle of respecting the existing family form and traditional concepts. The fourth part is the judicial practice suggestions on the ownership of the parents' purchase of the house after marriage. In view of the difficult and controversial problems that appear in the judicial practice of our country, we should pay attention to the affirmation of family work on the basis of emotion in marriage and family. Compensation for the no-fault party without property right and compensation for the non-property party for the parents of the house buyer to fulfill their due maintenance obligations, in order to improve the recognition of the parents' contribution to the purchase of the house in our country.
【学位授予单位】：重庆大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D923.9

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