论夫妻共同财产的若干法律问题

发布时间：2018-06-10 09:14

本文选题：夫妻 + 共同　；参考：《中国政法大学》2004年硕士论文

【摘要】：我国修改后的婚姻法进一步完善了夫妻财产制，特别是较为具体地规定了夫妻共有财产的范围，确立了夫妻共同财产与夫妻个人财产之间的界限，但是，由于社会政治、经济、文化的飞速发展，夫妻财产的种类、范围和夫妻财产的关系等都有了新的变化，在诸如股权、商誉、夫妻一方的文凭、职业执照等财产的夫妻权属关系方面，现行婚姻法的规定还存在着一些不足或遗憾之处，仍然需要研究和探讨。文中“引言”，引出夫妻财产共同所有制的制度内涵、制度价值以及研究的意义所在，指出我国实行的是婚后所得共有制，与80年婚姻法相比进一步明确了夫妻共有财产范围，但在一些新的财产领域里，对夫妻财产权属关系规定的不够明确，仍然需要进一步研究和探讨并提出了三个方面的问题。第一是股权作为夫妻共同财产的问题。文中表述了股权作为一项民事权利不同于其他民事权利的特征，股权的特殊性为股权作为夫妻共同财产的认定和处理带来了相应的问题和麻烦，着重分析了股份被登记成夫妻一方时如何认定其是否属于夫妻共有，指出在我国夫妻共有股权的登记制度不够健全的情况下，判断股权的真正归属，不仅要以股东登记为依据，还应当以该股权据以转化的其他财产权的归属为实体上的标准。同时论述了股权由一方在婚前取得，而股息、红利则是在婚后实际获得，这时能否认定该收益为夫妻共有以及股权作为夫妻共有财产的分割原则和分割方式问题。提出了区别“抽象的股利分派请求权”和“具体的股利分派请求权”，以“具体的股利分派请求权”的取得时间作为认定夫妻共有财产的取得时间。认为股权是一项特殊的民事权利，如果夫妻一方在婚前取得股权，且婚后所实际取得的股息、红利是根据婚前公司股东会作出的确定的分派一定金额股利的决议，则该收益的权利取得时间为婚前，应为夫妻一方个人财产，如果该股东会决议是在婚后作出，则该收益的实际取得时间为婚后，应为夫妻共同所有。同时，文中还提出了“主动增值和被动增值”理论，在判定股权收益的归属时，还要看是否渗入了夫妻婚后一方或双方的时间、精力和劳动。文中在论述股权作为夫妻共同财产的分割原则时，强调由于股权的特殊性，要同时兼顾两个方面的原则，一方面，要从股权的属性出发，按照公司法有关共有股权的原则进行分割；另一方面，又要考虑到股权作为夫妻共有财产的这一特殊性，在对股权进行分割时，遵循婚姻法有关夫妻共同财产分割的基本原则。对股权作为夫妻共有财产的分割方式，要遵循《公司法》等有关法律和司法解释的规定，具体可采用直接分割、股权转让、作价补偿、拍卖分别等方式。第二是商誉作为夫妻共有财产的问题。在此一节中，文中给出了商誉的定义， WP=5 论述了商誉的法律性质和地位，指出商誉在当前已普遍被当作无形资产看待，它具有双重属性，即人格属性和财产属性，因此，商誉的共有，在商誉是由夫妻一方建立起来的情况下，夫妻双方共同拥有的只是商誉权中的经济利益部分；如果商誉是由夫妻双方共同建立的，则夫妻不但共同享有商誉权中的经济利益，也共同享有商誉权中的精神利益。商誉的经济利益内涵，不仅包括现实的收益，也包括潜在的收益，商誉的潜在收益也属于夫妻共同财产。作为一种民事权利，具有知识产权的特权，笔者认为将其归入知识产权权利体系较为合适。正因为商誉具有可用金钱衡量的经济价值，使得它在离婚案件中能够作为夫妻共同财产予以分割。商誉的价值评估和分割是非常重要又是非常困难的，文中对商誉的价值评估和作为夫妻共有财产分割的具体原则和方式进行了论述。认为商誉价值评定的客体是商誉权，作为夫妻财产的商誉具有附随性，商誉的价值附着于其载体中第三个是夫妻一方取得的学位、执照作为夫妻共同财产的问题。文中以美国法院的三个案例，涉及到两个问题，一是夫妻一方在婚姻关系存续期间所取得的学位、职业执照是否属于夫妻共同财产的问题，二是如何处理婚姻关系存续期间一方取得文凭、职业执照所引发的利益冲突和利益平衡问题。对此，存在两种观点和评价，一种观点给予了肯定，认为其属于夫妻共同财产，应当予以公平分割；另一种则认为，文凭、执照不属于财产的范围，从而给予了否定。文中肯任了前一种观点，认为，首先，，夫妻共同财产中的“财产”概念，已经突破了传统的财产概念的范围，被注入了新的内涵，在婚姻财产中对财产要作扩大理解，文凭、执照中包含的经济利益和价值可以作为夫妻共同财产来认定。其次，文凭、执照中的经济利益的权利具有共享性。文中以“夫妻经济合伙”理论为基础，论证了夫妻一方的文凭、执照属于夫妻合伙事业的产物，其中包含着另一方的出资，虽然这种出资的方式可能不同于其他的合伙关系。文中还从不同的理论基础、法律根据、法律效果等方面论述了文凭、执照作为夫妻共同财产的价值分割与家务补偿制度的区别。
[Abstract]:The amended marriage law in our country further perfects the property system of husband and wife, especially stipulates the scope of the common property of the husband and wife, establishes the boundary between the common property of the husband and wife and the personal property of the husband and wife, but, due to the rapid development of the social politics, the economy, the culture, the type of husband and wife property, the relationship between the scope of husband and wife property and so on With new changes, there are still some shortcomings or regrets in the current marriage law, such as equity, goodwill, husband and wife's diploma, professional license and other property relations, and still need to be studied and discussed.
The "Introduction" introduces the system connotation of the common ownership of husband and wife property, the value of the system and the significance of the study. It is pointed out that our country implements the joint ownership after marriage. Compared with the marriage law of 80 years, the property scope of the husband and wife is further clarified, but in some new property fields, it is not clear that the relationship between husband and wife property rights and ownership is not specified. Indeed, we still need further research and discussion, and put forward three problems.
The first is that the equity is the common property of the husband and wife. The article expresses that the ownership is different from the other civil rights. The particularity of the stock right brings the corresponding problems and trouble to the identification and treatment of the equity as the common property of the husband and wife. If it belongs to the husband and wife, it is pointed out that the real ownership of the shares should be judged not only on the basis of the registration of shareholders, but also the attribution of the other property rights which are converted to the entity under the condition that the registration system for the share of the husband and wife is not perfect in our country. If the dividend is actually acquired after marriage, can we identify the income as the split principle and the segmentation way of the husband and wife's common property, and put forward the time to distinguish the "abstract dividend distribution request right" and "the specific dividend assignment right", with the time of obtaining the "right of dividend assignment". In order to determine the time of acquisition of the shared property of the husband and wife, it is considered that the equity is a special civil right. If the husband and wife obtain a stock right before marriage and the actual dividend after marriage, the dividend is a resolution based on a certain amount of dividends made by the shareholders of the premarital company, then the time of obtaining the benefit shall be premarital. A husband and wife's personal property, if the resolution is made after marriage, then the actual acquisition time of the income is married, should be married to the common ownership. At the same time, the article also put forward the theory of "active value-added and passive appreciation". On the basis of the particularity of equity, we should take into account the principle of two aspects at the same time. On the one hand, it should be divided according to the principle of the share ownership of the company law, on the one hand, and on the other hand, the ownership should be considered as the common property of the husband and wife. This particularity, when dividing the stock right, follows the basic principle of the marriage law on the division of the common property of the husband and wife. As for the split way of the share of the husband and wife, we should follow the relevant laws and judicial interpretations of the company law and so on, which can be made by direct division, equity transfer, price compensation and auction respectively.
The second is the issue of goodwill as a common property of husband and wife. In this section, the definition of goodwill is given.
WP=5
This paper expounds the legal nature and status of goodwill, and points out that goodwill has been treated as intangible assets at present, which has dual attributes, that is personality attributes and property attributes. Therefore, the common ownership of goodwill is the economic benefit part of the right of goodwill when the goodwill is established by the husband and wife. If the goodwill is established by both husband and wife, the husband and wife not only share the economic interests of the right of goodwill, but also enjoy the spiritual interests of the right of goodwill. The economic interests of the goodwill not only include the real income, but also the potential income, and the potential benefits of the goodwill also belong to the common property of the husband and wife. With the privilege of intellectual property, I think it is more appropriate to put it into the right system of intellectual property right. It is because it has the economic value that can be measured by money so that it can be divided into the common property of husband and wife in the case of divorce. It is very important and very difficult to evaluate and divide the value of goodwill. The value evaluation of goodwill and the specific principles and ways of the division of the common property of the husband and wife are discussed. The object of the evaluation of the value of goodwill is the right of goodwill, which is attached to the goodwill of the husband and wife, and the value of the goodwill is attached to its carrier.
The third is the degree obtained by the husband and wife, and the license is the common property of the husband and wife. In this article, the three cases of the United States Court involve two questions, one is the degree obtained by the husband and wife during the marriage relationship, whether the occupational license belongs to the common property of the husband and wife, and the two is how to deal with the duration of the marriage relationship. There are two views and comments on the conflict of interests and the balance of interests caused by the diploma and the professional license. One view gives the affirmation that it belongs to the common property of the husband and wife and should be divided equally; the other is that the diploma is not the scope of the property. The first view is that, first of all, the concept of "property" in the common property of husband and wife has broken through the scope of the traditional property concept, and has been injected into the new connotation, to expand the understanding of the property in the marital property, the diploma, the economic benefits and values contained in the license as the common property of the husband and wife. Secondly, diploma, and The right of economic interests in the picture is shared. Based on the theory of "husband and wife economic partnership", the paper demonstrates the diploma of one spouse. The license is a product of the partnership of husband and wife. It contains the contribution of the other party, although the way of this contribution may be different from his partnership. The difference between the value division of diploma and license as a common property of husband and wife and the system of household compensation is discussed in terms of legal basis and legal effect.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2004
【分类号】：D923.9

【引证文献】