论夫妻约定财产制下的物权变动

发布时间：2018-05-06 18:05

本文选题：约定财产制 + 物权变动　；参考：《大连海事大学》2016年硕士论文

【摘要】：在司法实践中夫妻约定财产归属争议案件逐渐增多,就其夫妻"约定"之下物权变动是否要遵循物权法中物权变动的公示原则在理论界引起了广泛讨论,涌现出各种各样的不同观点,婚姻法及其司法解释对此并没有相关的规定。本文对该问题运用案例分析、对比等多种方法进行分析,拟对夫妻约定财产制下物权变动规则提出自己的观点,以期对此问题的解决提供有益的帮助。本文除去引言和结论,共分成四部分:第一部分为约定财产制下物权变动理论争议提出。通过一则案例将争议问题引出。首先,对案件情节、裁判做简洁交代,为争议问题讨论做好铺垫。其次,对案情所涉及的问题做进一步的总结概括,从而引出问题争议焦点——约定财产制下物权变动规则如何适用。由于婚姻诉讼中夫妻双方当事人对财产约定引起的物权变动争议越来越多,物权法与婚姻法规定的冲突导致实务中出现同案不同判已成为亟待解决的问题。该部分主要是引出争议问题,以为下文的论述做好铺垫。第二部分为约定财产制与物权变动的概述。该部分主要是对约定财产制和物权变动的相关理论做概括性介绍。婚姻法和物权法都是民法体系不可或缺的组成部分,都有各自的立法基础和理论背景,由于夫妻约定财产制兼有身份属性和财产属性,必然导致这两部法律在处理该问题上出现交叉。对相关概念的论述将有利于对争议问题的深入剖析。第三部分为约定财产制下夫妻间物权变动适用规则观点及评析。无论是在理论界还是在司法实践中就约定财产制下物权变动问题一直备受关注,理论争议不断,权威的观点主要有四种。该部分主要是对这四种观点做详细介绍和评析,望取其精华去其糟粕。第四部分为完善夫妻约定财产制下物权变动的建议。首先对完善夫妻约定财产制下物权变动规则做总体思考,立足于全局,然后进一步提出具体建议,以便更好地协调物权法和婚姻法在处理约定财产制下物权变动的关系。
[Abstract]:In judicial practice, there are more and more disputes over the ownership of property between husband and wife. Whether the change of real right under the agreement of husband and wife should follow the public principle of real right change in real right law has aroused extensive discussion in the theoretical circle. A variety of different views have emerged, and there are no relevant provisions in the Marriage Law and its judicial interpretation. This paper analyzes this problem by case analysis, comparison and other methods, and puts forward its own viewpoint on the rules of change of real right under the system of husband and wife's agreed property, in order to provide useful help to solve this problem. Apart from the introduction and conclusion, this paper is divided into four parts: the first part is the theory of property rights change under the system of agreed property. A case led to the dispute. First of all, the circumstances of the case, the referee to make a succinct explanation, for the controversial issues to do a good job. Secondly, it makes a further summary of the problems involved in the case, which leads to the focus of the dispute-how to apply the rules of change of real right under the system of agreed property. Due to more and more disputes about the change of real right caused by the agreement of property between husband and wife in matrimonial litigation, the conflict between the law of real right and the law of marriage leads to the different judgment of the same case in practice, which has become an urgent problem to be solved. This part is mainly to lead to the controversial issues, for the following discussion to do a good job. The second part is an overview of the system of agreed property and the change of real right. This part mainly introduces the theory of property system and property right change. Marriage law and property law are both indispensable parts of the civil law system, and both have their own legislative basis and theoretical background. Since the husband and wife agree that the property system has both identity and property attributes, This will inevitably lead to the intersection of the two laws in dealing with this issue. The discussion of related concepts will be beneficial to the in-depth analysis of the controversial issues. The third part is the viewpoint and analysis of the applicable rules of the change of real right between husband and wife under the system of agreed property. Whether in theory or in judicial practice, the change of real right under the system of agreed property has been paid close attention to, and there are four kinds of views of authority. This part mainly introduces and evaluates the four viewpoints in detail, and looks forward to taking the essence of the four viewpoints to get rid of the dross. The fourth part is the suggestion to perfect the change of real right under the system of husband and wife's agreed property. First of all, the author makes a general thinking on the improvement of the rules of real right change under the system of husband and wife's agreed property, and then puts forward some concrete suggestions in order to better coordinate the relationship between the real right law and the marriage law in dealing with the change of real right under the system of agreed property.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D923.9

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