我国离婚财产分割制度的社会性别分析
发布时间：2018-08-22 08:02
【摘要】：婚姻家庭是社会的细胞，是人类社会的基础，其状态也随着人类法律的变迁而变化着。社会性别理论和社会性别分析方法是社会学的研究结果，其有助于将男女两性放在平等层面上，审视男女两性各自的特点、需求，以便制定出更加符合两性利益的公共政策，从而推进两性平等。 列夫·托尔斯泰说过：“幸福的家庭都是相似的，不幸的家庭各有各的不幸。”法律在对待需进行离婚财产分割的离婚家庭时，更要审视男女两性的不同需求，充分保护双方利益，尤其是保护婚姻弱势一方的合法权益。我国现行《婚姻法》及其三个司法解释中的离婚财产分割制度尚待完善，尤其是其中的家务劳动补偿制度、离婚房产分割制度和离婚知识产权财产性收益分配制度等与婚姻中及离婚后男女双方的利益息息相关的重要制度，仍有一些不足。本文将社会性别理论及其分析方法引入离婚财产分割制度的研究中，提出对这些制度的立法建议，，这样我们可以站在两性平等的立场上，更公平合理地制定有利于男女双方利益的离婚财产分割制度，保障男女双方，尤其是女方的财产权利，进一步促进男女平等和社会和谐稳定。 全文除引言、结论外，分为四个部分。 引言部分交代了文章要论述的主要问题、研究现状、研究方法以及研究意义。 第一部分介绍了用社会性别理论分析我国离婚财产分割制度的原因和意义。在介绍了社会性别理论的概念、产生和发展之后；着重介绍了用社会性别分析方法检审婚姻法的必要性及可行性：因传统的阶级分析方法有着不能适应现代婚姻家庭生活的缺陷，以及社会性别分析方法自身具备的批判父权制、能够充分体现女性特点及需求以及符合婚姻法平等观等优点，将社会性别分析方法引入离婚财产分割制度，可以切实分析男女两性在婚姻关系中的不同利益及不同需求，从而制定各种倾斜性的政策和法律，对明显处于劣势的群体给予特殊保护。 第二部分介绍了社会性别视角下我国离婚财产分割制度之不足：一、家务劳动补偿制度在适用前提、补偿标准、适用时段三个方面的不足；二、离婚房产分割制度，尤其是《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）》（以下简称《婚姻法（解释三）》）第七条、第十条在社会性别视角下的不足，及其在法律技术中的缺陷；三、离婚知识产权财产性收益分配制度之不足。 第三部分利用社会性别分析方法对我国离婚财产分割制度不足的原因进行了分析。一、对家务劳动补偿制度，首先介绍了我国家务劳动现状及其影响，分析了不足存在的原因。二、对离婚房产分割制度，尤其是《婚姻法（解释三）》第七条和第十条产生的不足的原因进行了着重的分析，提出自己的主张。三、对离婚知识产权财产性收益分配制度不足进行了分析：法律缺少对离婚时无形财产分割的规定，是对妻子的权益的忽视，会严重损害离婚妇女的合法权益。 第四部分社会性别视角下对我国离婚财产分割制度的立法建议。一、对家务劳动补偿制度：1.扩大补偿范围至夫妻共同财产制，并规定在夫妻共同财产制中适用家务劳动补偿制度的限制性条件；2.具体规定家务劳动补偿计算标准；3.扩大家务劳动补偿制度的适用时段至婚姻存续期间。二、对离婚房产分割制度：应树立着重保护家庭的和谐稳定，重点保护家庭的整体利益的立法价值理念，不能以保护个人权利为由忽视对家庭整体利益的保护。1.对于《婚姻法（解释三）》第七条、第十条，应以保护女性合法权益和婚姻稳定性为指导精神；2.建议删除《婚姻法（解释三）》第七条；3.增加受赠房产离婚分配的弹性约定条款，对于婚后受赠房产仍然以《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（二）》（以下简称《婚姻法（解释二）》）第二十二条第二款为基本条款，以夫妻双方约定为准；4.建议对于婚前按揭婚后取得房产证的房屋分割，增加按揭房屋分割的综合评定标准，对房屋的产权问题进行合理安排。三、对离婚知识产权财产性收益分配制度，建议应增设对无形财产范围的规定、增设知识产权期待利益分割方式的规定，以实现对女性合法权益的保护，促进家庭的和谐稳定。 结语部分指出，中国当代两性平等，尤其是女性地位的提高和女性自身的发展需要法律来推动，法律应当为此做出适当地调整，使得男女两性和整个社会得以自由、和谐、稳定地发展。
[Abstract]:Marriage and family are the cells of society and the basis of human society, and their state changes with the changes of human law. Gender theory and gender analysis are the results of sociological research, which help to put men and women on the level of equality, examine the characteristics and needs of men and women, in order to formulate a more consistent. The public policy of gender interests promotes gender equality.
Leo Tolstoy said: "Happy families are similar, unfortunate families have their own misfortunes." When dealing with divorced families that need to divorce property division, the law should examine the different needs of men and women, fully protect the interests of both sides, especially the legitimate rights and interests of the disadvantaged party in marriage. The divorce property division system in its three judicial interpretations needs to be perfected, especially the housework compensation system, the divorce property division system and the divorce intellectual property property property income distribution system, which are closely related to the interests of both men and women in marriage and after divorce. The theory and its analysis method are introduced into the study of divorce property division system, and some legislative suggestions are put forward to these systems. In this way, from the standpoint of gender equality, we can formulate a divorce property division system more equitably and rationally, which is beneficial to the interests of both men and women, so as to protect the property rights of both men and women, especially women, and further promote it. Equality between men and women and social harmony and stability.
In addition to the introduction and conclusion, the paper is divided into four parts.
The introduction explains the main issues, research status, research methods and research significance of the article.
The first part introduces the reasons and significance of using gender theory to analyze the divorce property division system in our country.After introducing the concept of gender theory, its emergence and development, it emphasizes the necessity and feasibility of examining the marriage law by using gender analysis method: the traditional class analysis method can not adapt to the modern society. The defects of marriage and family life and the critical patriarchy of gender analysis method can fully embody the characteristics and needs of women and conform to the concept of equality in marriage law. By introducing gender analysis method into divorce property division system, we can analyze the different interests and differences between men and women in marriage relationship. Demand leads to the formulation of preferential policies and laws that provide special protection for groups that are clearly at a disadvantage.
The second part introduces the shortcomings of the divorce property division system in China from the gender perspective: first, the shortcomings of the domestic labor compensation system in the application premise, compensation standards, application period; second, the divorce property division system, especially the interpretation of the Supreme People's Court on the application of the Marriage Law of the People's Republic of China. 3) > (hereinafter referred to as Article 7, Article 10 in the perspective of social gender deficiencies, and its shortcomings in legal technology; 3, divorce intellectual property rights property income distribution system deficiencies.
The third part analyzes the reasons for the insufficiency of the divorce property division system in China by using the method of gender analysis. First, it introduces the current situation of domestic work and its influence, and analyzes the reasons for the insufficiency. Second, it analyzes the divorce property division system, especially the seventh and seventh articles of the Marriage Law (Interpretation 3)>. Thirdly, it analyzes the insufficiency of property income distribution system of divorce intellectual property rights: the lack of legal provisions on the division of intangible property in divorce is a neglect of the rights and interests of the wife, which will seriously damage the legitimate rights and interests of divorced women.
The fourth part of the gender perspective of China's divorce property division system of legislative proposals. First, the domestic labor compensation system: 1. Expand the scope of compensation to the joint property system of husband and wife, and stipulate the application of the joint property system of husband and wife housework compensation system of restrictive conditions; 2. Specific provisions of housework compensation standards; 3. Expanding the period of application of the compensation system for household work to the duration of marriage. 2. Divorce property division system: We should establish the legislative value concept of emphasizing the protection of family harmony and stability, emphasizing the protection of the overall interests of the family, not neglecting the protection of the overall interests of the family on the grounds of protecting individual rights. 1. The Marriage Law (Interpretation 3)> Article 7 and Article 10 shall be guided by the protection of women's legitimate rights and interests and the stability of marriage; 2. It is suggested that Article 7 of the Marriage Law (Interpretation 3) be deleted; 3. The flexible agreement clause on divorce distribution of donated real estate should be added, and the "Supreme People's Court" shall still apply the Marriage Law of the People's Republic of China to the donated real estate after marriage. Interpretation (2)> (hereinafter referred to as Article 22, paragraph 2, as the basic clause, the agreement between the husband and wife shall prevail; 4. It is proposed to divide the house with the real estate certificate obtained after the premarital mortgage marriage, increase the comprehensive evaluation criteria for the division of the mortgaged house, and make reasonable arrangements for the property rights of the house. In order to protect women's legitimate rights and interests and promote family harmony and stability, it is suggested that the scope of intangible property should be stipulated and the way of expecting interests to be divided in intellectual property rights should be added.
The conclusion points out that China's contemporary gender equality, especially the advancement of women's status and the development of women themselves need to be promoted by law. The law should make appropriate adjustments so as to enable men and women and the whole society to develop freely, harmoniously and steadily.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D923.9
本文编号：2196496
[Abstract]:Marriage and family are the cells of society and the basis of human society, and their state changes with the changes of human law. Gender theory and gender analysis are the results of sociological research, which help to put men and women on the level of equality, examine the characteristics and needs of men and women, in order to formulate a more consistent. The public policy of gender interests promotes gender equality.
Leo Tolstoy said: "Happy families are similar, unfortunate families have their own misfortunes." When dealing with divorced families that need to divorce property division, the law should examine the different needs of men and women, fully protect the interests of both sides, especially the legitimate rights and interests of the disadvantaged party in marriage. The divorce property division system in its three judicial interpretations needs to be perfected, especially the housework compensation system, the divorce property division system and the divorce intellectual property property property income distribution system, which are closely related to the interests of both men and women in marriage and after divorce. The theory and its analysis method are introduced into the study of divorce property division system, and some legislative suggestions are put forward to these systems. In this way, from the standpoint of gender equality, we can formulate a divorce property division system more equitably and rationally, which is beneficial to the interests of both men and women, so as to protect the property rights of both men and women, especially women, and further promote it. Equality between men and women and social harmony and stability.
In addition to the introduction and conclusion, the paper is divided into four parts.
The introduction explains the main issues, research status, research methods and research significance of the article.
The first part introduces the reasons and significance of using gender theory to analyze the divorce property division system in our country.After introducing the concept of gender theory, its emergence and development, it emphasizes the necessity and feasibility of examining the marriage law by using gender analysis method: the traditional class analysis method can not adapt to the modern society. The defects of marriage and family life and the critical patriarchy of gender analysis method can fully embody the characteristics and needs of women and conform to the concept of equality in marriage law. By introducing gender analysis method into divorce property division system, we can analyze the different interests and differences between men and women in marriage relationship. Demand leads to the formulation of preferential policies and laws that provide special protection for groups that are clearly at a disadvantage.
The second part introduces the shortcomings of the divorce property division system in China from the gender perspective: first, the shortcomings of the domestic labor compensation system in the application premise, compensation standards, application period; second, the divorce property division system, especially the interpretation of the Supreme People's Court on the application of the Marriage Law of the People's Republic of China. 3) > (hereinafter referred to as
The third part analyzes the reasons for the insufficiency of the divorce property division system in China by using the method of gender analysis. First, it introduces the current situation of domestic work and its influence, and analyzes the reasons for the insufficiency. Second, it analyzes the divorce property division system, especially the seventh and seventh articles of the Marriage Law (Interpretation 3)>. Thirdly, it analyzes the insufficiency of property income distribution system of divorce intellectual property rights: the lack of legal provisions on the division of intangible property in divorce is a neglect of the rights and interests of the wife, which will seriously damage the legitimate rights and interests of divorced women.
The fourth part of the gender perspective of China's divorce property division system of legislative proposals. First, the domestic labor compensation system: 1. Expand the scope of compensation to the joint property system of husband and wife, and stipulate the application of the joint property system of husband and wife housework compensation system of restrictive conditions; 2. Specific provisions of housework compensation standards; 3. Expanding the period of application of the compensation system for household work to the duration of marriage. 2. Divorce property division system: We should establish the legislative value concept of emphasizing the protection of family harmony and stability, emphasizing the protection of the overall interests of the family, not neglecting the protection of the overall interests of the family on the grounds of protecting individual rights. 1. The Marriage Law (Interpretation 3)> Article 7 and Article 10 shall be guided by the protection of women's legitimate rights and interests and the stability of marriage; 2. It is suggested that Article 7 of the Marriage Law (Interpretation 3) be deleted; 3. The flexible agreement clause on divorce distribution of donated real estate should be added, and the "Supreme People's Court" shall still apply the Marriage Law of the People's Republic of China to the donated real estate after marriage. Interpretation (2)> (hereinafter referred to as
The conclusion points out that China's contemporary gender equality, especially the advancement of women's status and the development of women themselves need to be promoted by law. The law should make appropriate adjustments so as to enable men and women and the whole society to develop freely, harmoniously and steadily.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D923.9
【参考文献】
相关期刊论文 前6条
1 李洪祥;;我国夫妻财产制度的缺陷分析[J];长白学刊;2008年06期
2 张国珍;论家务劳动的社会价值[J];常德师范学院学报(社会科学版);1999年01期
3 李永新;浅谈家务劳动创造价值的功能[J];东北财经大学学报;2004年04期
4 李洪祥;;论离婚经济补偿制度的重构[J];当代法学;2005年06期
5 王政;“女性意识”、“社会性别意识”辨异[J];妇女研究论丛;1997年01期
6 孙若军;;离婚时处理按揭房屋的法律问题探析[J];法学家;2009年03期
本文编号：2196496
本文链接：https://www.wllwen.com/falvlunwen/hyflw/2196496.html
