家庭伦理视角下的家庭财产制度研究

发布时间：2018-04-15 15:46

本文选题：家庭财产制度 + 伦理困境　；参考：《河南师范大学》2017年硕士论文

【摘要】：当下中国,在市场经济的大背景下,婚姻家庭法正在一步步向财产法靠拢,突出表现在夫妻财产制度上。尤其是《婚姻法司法解释(三)》的出台,备受社会各界人士诟病,言其过分强调个人权利,忽视婚姻家庭的伦理性,漠视对妇女权益的保护。现行婚姻法将家庭生活与商业生活混为一谈,使得婚姻法变成财产法的一部分,必然破坏婚姻家庭的伦理功能,不利于家庭生活的稳定、健康发展。通过司法实践中的案例,引出当前婚姻法存在的过分强调个人权益、漠视对妇女权益进行保护等相关问题,进而指出婚姻在实质上是伦理关系。然而,现行的婚姻法在夫妻财产的界定问题上却越来越重视维护个人财产权益,试图将资本原则引入家庭生活领域,从而忽视了家庭的伦理功能。主要表现在以下几个方面:《婚姻法司法解释(三)》之第六条将夫妻之间的赠与行为归入《合同法》的调整范围,允许赠与方行使任意撤销权,极大限度地侵害了受赠方的利益(受赠方通常为女性);第十条则将夫妻之间的房产归属问题让位于《物权法》调整,使得财产法正一步步渗透到婚姻家庭法中,婚姻法正在逐步丧失其自身的独立性;尚未取得的知识产权类利益被排除在婚姻法的调整范围之外,致使另一方在家庭中的付出得不到任何回报;家务劳动的价值在婚姻家庭中难以实现,除非实行分别财产制或双方离婚,以至于女性在家庭及社会中的地位相较于男性而言仍比较低。针对以上问题,在借鉴市场经济最为发达的国家,即美国关于婚姻财产的分割方法、离婚后的抚养制度等方面的成功经验的基础上,就完善我国的家庭财产制度提出几点粗浅的建议:增设一体主义及以人为本原则为婚姻法的基本原则;增加非常财产制度的适用范围,明确规定其只能通过诉讼的方式实行,并限制申请人的范围;允许财产法适当地介入到婚姻法的领域,同时要注意,婚姻法在借鉴财产法中有关财产关系之规定时需要充分考虑到婚姻家庭自身的特殊性,不能粗暴地直接适用财产法的有关规定,应做到合理、恰当的衔接;将夫妻之间任一方在婚姻关系存续期间获得的尚未实现经济利益的知识产权及类似知识产权的证书等归为夫妻之间的共同财产,对离婚时可以估价的则直接分割,不能进行估价的则在实现其经济利益时再进行分割;为补偿承担家务劳动一方的付出,规定婚姻关系存续期间的个人财产,按一定比例逐年转化为夫妻共同财产,并在夫妻双方离婚时给予承担家务劳动的一方足够自立的补偿标准。
[Abstract]:At present, under the background of market economy, the law of marriage and family is drawing closer to the law of property step by step, which is prominent in the property system of husband and wife.Especially, the introduction of the Judicial interpretation of Marriage Law (3) has been criticized by people from all walks of life, saying that it overemphasizes individual rights, neglects the ethics of marriage and family, and ignores the protection of women's rights and interests.The present marriage law confuses family life with business life, which makes marriage law become a part of property law, which inevitably destroys the ethical function of marriage and family, and is not conducive to the stability and healthy development of family life.Through the cases in the judicial practice, this paper draws the conclusion that the current marriage law has too much emphasis on individual rights and interests, ignores the protection of women's rights and interests, and points out that marriage is essentially an ethical relationship.However, the current marriage law pays more and more attention to the protection of personal property rights and interests in the definition of marital property, and attempts to introduce the principle of capital into the field of family life, thus neglecting the ethical function of the family.It is mainly manifested in the following aspects: article 6 of the Judicial interpretation of the Marriage Law (3) includes the act of gift between husband and wife within the scope of adjustment of the contract Law, allowing the donator to exercise the right of arbitrary rescission.It greatly infringes the interests of the grantee (the grantee is usually a woman; article 10 gives way to the property ownership issue between husband and wife to the property law, so that the property law is gradually infiltrating the marriage and family lawThe marriage law is gradually losing its own independence; the interests of intellectual property that have not yet been obtained are excluded from the scope of the adjustment of the marriage law, which results in the other party not receiving any return for his or her efforts in the family;The value of domestic work is difficult to achieve in a married family unless a separate property system or divorce is introduced so that women still have a lower status in the family and society than men.In view of the above problems, on the basis of drawing lessons from the successful experiences of the most developed countries in the market economy, that is, the United States on the division of marital property, the maintenance system after divorce, and so on,To improve the family property system in our country, some suggestions are put forward: to add the principle of integralism and humanism as the basic principle of the marriage law, to increase the scope of application of the system of extraordinary property, and to make it clear that it can only be carried out by way of litigation.It also limits the scope of the applicant, allows the property law to be properly involved in the field of the marriage law, and at the same time notes that the marriage law should take fully into account the particularities of the marriage and family when drawing lessons from the property relations provisions in the property law.The relevant provisions of property law should not be applied rudely and directly, and reasonable and appropriate convergence should be achieved;Classifying the intellectual property rights and certificates of similar intellectual property rights and similar intellectual property acquired by either spouse during the marriage relationship as joint property between the husband and wife, and directly dividing up the property that can be valued at the time of divorce,In order to compensate for the efforts of one of the domestic workers, it is stipulated that the personal property during the duration of the marriage relationship shall be converted into the joint property of the husband and wife in a certain proportion year by year.And in the event of divorce, the husband and wife to undertake domestic work on a sufficient basis for self-supporting compensation.
【学位授予单位】：河南师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.9

【参考文献】