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On the lack of matrimonial property regimes in China and perfect

Author: LiuHuaBing
Tutor: LiXiuFen
School: Shandong University
Course: Legal
Keywords: Matrimonial Property System Legal Property System Contract Property System Common Property System
CLC: D923.9
Type: Master's thesis
Year: 2010
Downloads: 403
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Abstract

Matrimonial property system has been an important system in family law. It not only materially protects the regular family life, but also has an influence upon the third party’s interest and various transactions. Therefore, every country has attached great importance to the legislation regarding matrimonial property system. After the establishment of PRC, several marriage laws have been enacted and they are 1950 Marriage Law,1980 Marriage Law and 2001 newly revised Marriage Law. Through the above-mentioned legislations, the substance and system regarding matrimonial property system are gradually complete. Although, compared with two marriage laws, great improvements have been made in the third marriage law. However, there are some defects in the current legislation. Firstly, the incomplete structure of matrimonial property system. There is no general provisions on matrimonial property issues and irregular property system. Secondly, there are some defects in the legal matrimonial property provisions, such as no provisions on common property rights and agency of family affairs. Thirdly, there are some defects in the contract matrimonial property system. There are some loopholes on contract property issues and no provisions on the time, change and termination about the contract property issues. In the judicial practice, due to the current incomplete prescriptions of matrimonial property system, the judges may face some new issues and situations. These difficulties include the attribution of post-marital interest of one party’s pre-marital property, the attribution of unattained interest of one party’s intellectual property rights one party’s donation of common property to his or her extra-marital cohabitant and the nature of one party’s debt during marriage. Regarding the resolution of above-mentioned problems, the judges may feel difficult to deal with and the law experts also have different views in this regard. We should take the chance of enacting Civil Code and complete the matrimonial property system based on China’s own situations and other countries around the world. In this dissertation, the author does some researches to current matrimonial property issues with the method of comparison, based on China’s situation and combination of theory and practice and new issues and trends in his practice and puts forward to some suggestions regarding legislation. Firstly, to complete the structure of matrimonial property and add general provisions about matrimonial property and irregular property provisions; Secondly, to complete the substance of matrimonial property system, such as irregular matrimonial property system, the completion of common property rights, the clear attribution of special property, the completion of agency of family affairs and the validity of one party’s donation of common property to extra-matrimonial cohabitant; Thirdly, to establish the contract property system with China’s feature, including adding the timetable of contracting, completing the substance of contract, adding the publicity procedure of contract, adding the change and dismissing procedures of contract and prescribing the merits of contract property system.

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