论夫妻离婚时房屋产权分割的法律问题
发布时间：2019-04-19 01:31
【摘要】：随着市场经济的深入发展和住房制度的不断改革以及人们思想观念的不断更新,近些年离婚案件的数量呈上升趋势发展,在离婚案件中关于房产的分割是占较大比重的,因此在离婚案件中可见,房产这笔大宗财产一直是离婚夫妻争夺的主要焦点,也是近年来司法实践的难题之一。《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》司法解释三)实行以后离婚时按揭房屋的所有权及房屋在婚后的增值问题,还有在婚姻存续期间夫妻约定“忠诚协议”的情况下,此协议效力的判定等问题通常成为夫妻争夺的焦点。由于法律的滞后性和立法的不统一性导致在司法实践中各地方法院在认识上难以统一,出现“同案不同判”的现象,理论界对此问题也无统一认识。再者由于现行法律规范的缺失和不足,夫妻之间选择通过“忠诚协议”来协调关系。但这样的一个约定是否有效力仍然是一个值得探讨的问题。本文共有三个章节,第一章重点讨论离婚情况下按揭房屋的归属,以及增值部分如何分割,在离婚共有房产分割问题中,按揭房屋的分割一直占较大比例,这部分主要论述按揭房屋的三种形式的认定和分割问题,理论界的主流观点和立法方面的问题,以及笔者的个人观点。第二章主要是夫妻之间忠诚协议的效力认定、判断路径和理由的研究,忠诚协议对共有房产分割的影响,这可以成为法官在处理离婚案件的房产分割问题的主要依据,缓和社会矛盾,提高处理效率。第三章针对离婚时夫妻共同拥有的房屋分割立法提出完善建议,共包括四个模块:第一,建立夫妻婚姻财产登记制度,明确夫妻财产分配。第二,完善立法和司法解释的规定,完善妨碍夫妻共有房屋分割的法律制裁规定,填补法律漏洞,解决法律之间的冲突。第三,完善立法和司法解释的规定,发挥法律的灵活性。
[Abstract]:With the in-depth development of the market economy, the continuous reform of the housing system and the continuous renewal of people's ideas, the number of divorce cases has shown an upward trend in recent years. In divorce cases, the division of real estate accounts for a large proportion. As a result, in divorce cases, it can be seen that the large amount of real estate has always been the main focus for divorced couples to compete for. It is also one of the difficult problems in judicial practice in recent years. The interpretation of the Supreme people's Court on some issues concerning the Application of the Marriage Law of the people's Republic of China (3) (hereinafter referred to as the Judicial interpretation of the Marriage Law) The ownership of the mortgage house at the time of marriage and the value-added problem of the house after marriage, In addition, when husband and wife agree "loyalty agreement" during marriage, the determination of the validity of this agreement is usually the focus of husband-wife competition. Due to the lag of the law and the inconsistency of the legislation, it is difficult for the local courts to unify their cognition in the judicial practice, and the phenomenon of "different judgments in the same case" appears, and there is no unified understanding of this issue in the theoretical circles. Furthermore, due to the lack of existing legal norms, couples choose to coordinate the relationship through loyalty agreement. But the validity of such a pact is still a question worth discussing. There are three chapters in this paper. The first chapter focuses on the attribution of mortgage housing under divorce, and how to divide the value-added part. The division of mortgage house has always accounted for a large proportion in the problem of split-up of divorced co-owned real estate. This part mainly discusses the identification and division of the three forms of mortgage housing, the mainstream views of theorists and legislative issues, as well as the author's personal point of view. The second chapter is mainly about the validity determination of the loyalty agreement between husband and wife, the research of judging path and reason, and the influence of loyalty agreement on the division of common property, which can be the main basis for judge to deal with the problem of property division in divorce cases. We will ease social conflicts and improve the efficiency of handling them. The third chapter puts forward some suggestions on the division of the house jointly owned by husband and wife at the time of divorce, which includes four modules: first, to establish the marital property registration system and to make clear the distribution of matrimonial property. Second, perfect the legislation and judicial interpretation, perfect the legal sanctions that hinder the division of common house between husband and wife, fill the legal loophole, and resolve the conflict between the laws. Third, perfect the provisions of legislation and judicial interpretation, give play to the flexibility of the law.
【学位授予单位】：青岛大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.9
本文编号：2460479
[Abstract]:With the in-depth development of the market economy, the continuous reform of the housing system and the continuous renewal of people's ideas, the number of divorce cases has shown an upward trend in recent years. In divorce cases, the division of real estate accounts for a large proportion. As a result, in divorce cases, it can be seen that the large amount of real estate has always been the main focus for divorced couples to compete for. It is also one of the difficult problems in judicial practice in recent years. The interpretation of the Supreme people's Court on some issues concerning the Application of the Marriage Law of the people's Republic of China (3) (hereinafter referred to as the Judicial interpretation of the Marriage Law) The ownership of the mortgage house at the time of marriage and the value-added problem of the house after marriage, In addition, when husband and wife agree "loyalty agreement" during marriage, the determination of the validity of this agreement is usually the focus of husband-wife competition. Due to the lag of the law and the inconsistency of the legislation, it is difficult for the local courts to unify their cognition in the judicial practice, and the phenomenon of "different judgments in the same case" appears, and there is no unified understanding of this issue in the theoretical circles. Furthermore, due to the lack of existing legal norms, couples choose to coordinate the relationship through loyalty agreement. But the validity of such a pact is still a question worth discussing. There are three chapters in this paper. The first chapter focuses on the attribution of mortgage housing under divorce, and how to divide the value-added part. The division of mortgage house has always accounted for a large proportion in the problem of split-up of divorced co-owned real estate. This part mainly discusses the identification and division of the three forms of mortgage housing, the mainstream views of theorists and legislative issues, as well as the author's personal point of view. The second chapter is mainly about the validity determination of the loyalty agreement between husband and wife, the research of judging path and reason, and the influence of loyalty agreement on the division of common property, which can be the main basis for judge to deal with the problem of property division in divorce cases. We will ease social conflicts and improve the efficiency of handling them. The third chapter puts forward some suggestions on the division of the house jointly owned by husband and wife at the time of divorce, which includes four modules: first, to establish the marital property registration system and to make clear the distribution of matrimonial property. Second, perfect the legislation and judicial interpretation, perfect the legal sanctions that hinder the division of common house between husband and wife, fill the legal loophole, and resolve the conflict between the laws. Third, perfect the provisions of legislation and judicial interpretation, give play to the flexibility of the law.
【学位授予单位】：青岛大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.9
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