One, program problem
How does case of dispute of family of １ , marriage decide administer?
Case of first instance marriage, successive, family, general by court of basic level people administer. Counterpoise great difficulty, new type and the case that there is common sense on comfortable use statute, can according to " code of civil law " thirtieth 8 regulation, try by its by write one's own ticket of ranking people court, perhaps apply for approval according to junior people court the decision is tried by its.
2, involve case of praedial marital family dispute applicable praedial exclusive administer?
Analyse of issue of dispute of contract worth dispute, the belongings after the divorce, agreement of belongings of husband and wife, cohabitational relation produces issue, break up analyse produces dispute to wait attribute marital family dispute, according to popularly region administer the principle is affirmatory administer court, not applicable praedial exclusive administer, but the except that law has a regulation additionally.
3, factual marriage classics is mediated cannot of become reconciled, whether does the court decision forbid to grant to divorce?
Give below certain condition to factual marriage admit, do not mean its effectiveness to be equal completely at registering marriage, in one party the requirement removes when factual marriage concerns, cannot ask both sides still continues to live together with spouse name forcibly. Factual marriage classics is mediated cannot of become reconciled, should according to " top people court was not dealt with about people court cognizance marry to register and live together with spouse name a certain number of opinions of life case " the 6th regulation, mediation or adjudicative allow divorce.
4, invalid marriage whether by nolle prosequi processing? Adjudicate to invalid marriage whether application rehear? Marriage is in by annul or by what marry again before cancel, whether to form bigamy? Party disables with declare marriage applying for for bigamy, if bigamous case has disappeared when application, if why be handled?
To reflect the national force interpose to invalid marriage and punish, cannot press to invalid marriage nolle prosequi processing, answer to make the court decision with declare invalid marriage lawfully.
Invalid case belongs to declare marriage the case that be not bring a case to court, should prep according to the regulation of applicable and special program undertakes cognizance. According to " civilian explanation telling a way " the 380th regulation, to the court decision with declare invalid marriage, party must not apply for rehear. Person of party, interests thinks to have a mistake, can according to " civilian explanation telling a way " the 374th regulation processing.
According to " marriage law explains one " thirteenth regulation, disable or but cancel marriage is in only lawfully by annul or by the ability when cancel from only then do not suffer law to protect. Accordingly, marriage by annul or by what marry again before cancel, form bigamy.
Disable with declare marriage applying for for bigamy, when application, party already registered formalities via handling the divorce of regular marriage or regular marriage spouse just has died wait for those who bring about bigamous case to had disappeared, do not grant to support.
5, divorce case him prosecutor did not join suit to front courtyard, but those who entrust litigant agent, whether by nolle prosequi or press recall a:appellant processing?
According to " code of civil law " the 62nd regulation, did not join suit to front courtyard to divorce case him prosecutor, should distinguish case, cannot appear in court because of special situation truly, if entrust lawsuit procuratorial, cannot press nolle prosequi or recall a:appellant processing, but the party that did not appear in court must refer written opinion.
6, to producing the forbids to grant to divorce court decision of legal effectiveness whether application rehear?
To producing the forbids to grant to divorce court decision of legal effectiveness, party applies for rehear, do not grant to accept.
[another kind of viewpoint] : To producing the forbids to grant to divorce court decision of legal effectiveness, party applies for rehear, should grant to accept.
2, cohabitational problem
7, although both sides of male and female was not registered marry, but of collective already life, should be betrothal gifts denied return still? Although both sides of male and female is registered marry, but collective life time is shorter, should be the betrothal gifts when the divorce denied return still?
" marriage law explains 2 " the 10th the first of the first regulation " both sides was not dealt with marry of the formalities that register " be not the case that already lived jointly in the light of both sides, if although both sides was not dealt with marry the formalities that register, but already lived jointly truly, party requests to return return betrothal gifts, the amount of the time that should live jointly according to both sides, betrothal gifts, have wait for an element without use circumstance of birth children, belongings, bilateral economic atmosphere, drink to whether be returned surely still reach return returned number.
According to " marriage law explains 2 " the 10th regulation, whether is decision betrothal gifts returned whether should still conclude with party marital relation is main judgement basis. Party has been registered marry, although collective life time is shorter, betrothal gifts of the in principle when the divorce also does not grant to return still, but accord with " marriage law explains 2 " case of the first the 3rd regulation or the 10th existence monopolize, mercenary marriage receives the special status except such as the betrothal gifts, fact that is a bunco to take betrothal gifts with marrying.
[be aimed at the 2nd another kind of viewpoint] : Although party already was registered marry, but collective life time is shorter, the party when the divorce requests to return those who return betrothal gifts, the amount of the time that can live jointly according to both sides, betrothal gifts, have wait for an element without use circumstance of birth children, belongings, bilateral economic atmosphere, drink to whether be returned surely still reach return returned number.
8, how should be the belongings that during living together, forms broken up?
Cohabitational impact affects unlike regular marriage, removing when cohabitational relation, to living together during the salary of one party, bonus and production, manufacturing profit and because of successive, donative the lawful income that waits for way earning, in principle puts in his oneself 's charge all. Both sides has the property that purchases jointly to perhaps manage the income of earning jointly during live together, if find out,belong to share a concern by the portion, share the right according to respective contributive portion; If find out,belong to collective and mutual concern, enjoy the right jointly to sharing belongings. If cannot be found out, regard as share by the portion, give according to respective contributive portion break up. Cannot determine contributive share, regard as wait for the forehead to enjoy.
To by annul or by the marriage of cancel, during party lives together the belongings of earning, press collective and mutual processing. But evidence proves to be party one party all or the except that shares by the portion.
9, is experience of extramarital affair place donative how should handle? How should be the effectiveness of donative behavior maintained? How is donative content returned still?
The person that have a mate donative or the agreement is donative property of a third party, donative hind go back on one's word the view is returned return or a third party asks to fulfill donative, do not grant to support. But one party of regular marriage spouse encroachs its husband and wife with donative behavior the view is sued to return for collective money property right return, should grant to support commonly.
One party of regular marriage spouse advocates donative behavior is invalid and the requirement returns donative still content, should maintain donative behavior to disable entirely part of and rather than is invalid, donative content should be returned entirely still.
Returned donative content is returned to should be after donative behavior is maintained to disable donative the content of the mark at that time, if donative is money, should return return money, if donative is the objective such as building, car, should return return objective.
3, bring up, provide for problem
10, close child how should be appraisal started? Between brotherly sister whether applicable " does marriage law explain 3 " is the parentage of the 2nd regulation illative principle? Grown children or other relative whether mention parentage denies appeal to?
Close child of appraisal start should have proper sex, the one party that no matter be the one party that requests to affirm parentage,perhaps denies parentage namely should assume the quote responsibility that with its lawsuit requests to suit, only the quote of party has made the judge produces a heart to believe firmly, namely on the base that the view of party establishs likely, ability is started close child appraisal. Party was not referring the case that necessary evidence proves to its advocate to fall, only by suspect or guess application is close child of appraisal, do not grant to allow.
" marriage law explains 3 " illative principle applies to the parentage of the 2nd regulation only between parental children. Party requirement and half-blooded or uterine brother undertake kin appraisal affirms parentage between the sister, advocate applicable " marriage law explains 3 " the 2nd parentage is illative of the principle, do not grant to support.
Affirm parentage in principle should be a foundation with true kin, but answer at the same time the invariability of parentage of give attention to two or morethings, reason should be restricted to shrink the obligee limits that denies parentage. According to " marriage law explains 3 " the 2nd the first regulation, mention the appeal to obligee that parentage denies is one party of husband and wife. Grown children or other relative mention parentage denies appeal to, do not grant to support.
11, fall in the case that makes con sex bring up, the man whether does the view return the alimony that returns defray to compensate for spirit to damage solatium? How should the number that alimony and spirit damage solatium decide? How should main body of liability to pay compensation decide?
The woman conceals children and man intentionally not to have the fact of parentage, make the man fulfilled duty to rear actually, form con sex to foster tort behaviour, the man requests to return what return the alimony of defray and compensate for spirit to damage solatium, should grant to support commonly.
Return in affirmatory alimony when returning number, the man should assume quote responsibility to alimony defray circumstance. Really cannot quote proves, can consult " a certain number of specific opinions that top people court hears divorce case to handle children to raise a question about people court " the 7th regulation, what common property breaks up circumstance, place when bilateral economic income, divorce is actual during relation of the burden ability of both sides of the real need according to children, men and women, marriage puts add the take into consideration the circumstances such as standard of living decides.
Spirit damages the compensatory amount of solatium to answer according to " top people court about deciding liability to pay compensation of civil tort spirit the explanation of a certain number of problems " the 10th regulation is affirmatory.
The compensatory obligation subject that con sex raises should be the executive main body of fraudulent action. The man sues children to assume liability to pay compensation, do not grant to support. Unripe father of children and woman are connected seek those who cheat the man, or know perfectly well or should knowing his is children give birth to father and do not have claim to children, answer to assume liability to pay compensation jointly. The man sues the woman to assume liability to pay compensation only, the unripe father that need not add children is corespondent.
12, in divorce suit, party brings up a problem to was not reached with respect to children consistent, insist not to ask people court handles children to raise a question again, should manage like where?
The processing that the question raises to children in divorce suit should implement filial increase the biggest change a fundamental. Party brings up a problem to was not reached with respect to children consistent, insist not to ask people court handles children to raise a question again, can adjudicate forbid to grant to divorce.
13, how should the right main body that recovers alimony decide? How should the limits that alimony recovers during marital relation puts add decide? Recover alimony effectiveness for a given period of time of whether applicable lawsuit?
According to " marriage law " the 21st regulation, the right that recovers alimony is belonged to only minor or the children that cannot live independently. View parents is sued to pay after children is grown minor during of the alimony that the agree carries, do not grant to support.
Both sides of husband and wife all is had bring up minor or the legal obligation of the children that cannot live independently, nonexistent who is acting the question that who raises, law gifts only the right that minor children or the children that cannot live independently recover alimony, one party of husband and wife sues those who ask other one party returns the allowance that still pays for you, do not grant to support.
Minor or if the grandparent of the children that cannot live independently, grandfather mother, elder brother, elder sister replaces those who the one party of husband and wife that raise capacity and did not use up duty to rear or both sides fulfill duty to rear, sue one party of requirement husband and wife or both sides to return the allowance that still pays for you, should grant to support.
The limits that alimony recovers during marital relation puts add need not bureau be confined to is current charge and the cost that had produced, can predict the alimony that happen advocates along with all the others in the future, specific time limits is OK according to the case particular case take into consideration the circumstances decides.
According to " general principles of civil code of People's Republic of China " (the following abbreviation " civil code general principles " ) the 196th regulation, the request authority that recovers alimony is not applicable litigant effectiveness for a given period of time.
14, both sides of the husband and wife when the divorce agrees or bring up acceptance of filial one party not to beg alimony of children of burden of other one party directly, does after the event bring up filial one party directly whether sue requirement other one party to give with filial name pay allowance?
Both sides of the husband and wife when the divorce agrees or bring up acceptance of filial one party not to beg alimony of children of burden of other one party directly, after the event brings up filial one party to sue a requirement to just give those who pay allowance additionally with filial name again directly, do not grant to support commonly. But have bring up economic atmosphere of filial one party to produce serious change to be able to 't maintain filial place average living standard directly, or the charge such as filial life, education, medical treatment has truly increase those who wait for legitimate situation, according to " a certain number of specific opinions that top people court hears divorce case to handle children to raise a question about people court " the 18th regulation, can adjudicate other one party gives pay allowance.
15, " People's Republic of China is foster law " after applying, does the minor that register adopt to if where manage raises a question,answer to was being dealt with when the divorce?
Be in " People's Republic of China is foster law " after applying, foster should register to branch of civil administration of government of people of prefectural class above, otherwise adoptive relationship does not hold water. When husband and wife divorces do not hold water to be registered because of was not being dealt with and bringing about adoptive relationship, between both sides of husband and wife and minor not applicable " marriage law " the regulation that concerns about parental children.
When the divorce to minor raise a question, both sides of husband and wife should talk things over above all solve, if one party of husband and wife or both sides all are willing,bring up minor, adopt to ought to deal with the foster formalities that register of the condition to according with, the alimony of minor should be assumed by consignee proper motion, but people court is OK the take into consideration the circumstances such as the actual standard of living that common property breaks up circumstance, place when the burden ability of both sides of the real need according to minor, men and women, divorce decides other one party of husband and wife offers one-time economy the help. If both sides of husband and wife all does not accord with foster condition or the one party of husband and wife that are willing to bring up not to accord with foster condition, and the other one party of husband and wife that accords with foster condition is not willing to bring up or both sides of husband and wife all is not willing to continue to bring up minor, people court should suit of break down divorce, consult " civil code general principles " the 27th, 2 regulation is thirtieth after minor appoints guardian, restore the cognizance of divorce case again.
16, does view of grandparent, grandfather mother lie between era to visit Quan Yingru to manage where?
According to " marriage law " thirtieth 8 regulation, the exercise main body that visits authority is the parental one party that does not raise children directly, compulsory main body is the parental one party that raises children. Grandparent, grandfather mother sues a view to visit children of grandchildren, grandson, lack corresponding legal basis, do not grant to support commonly. But according to " marriage law " the 28th regulation, when grandparent, grandfather mother has died to parents or parents is brought up feebly or parents did not use up children of the minor grandchildren of duty to rear, grandson to use up duty to rear, according to the principle with right consistent obligation, its advocate what visit children of grandchildren, grandson regularly, should grant to support.
[another kind of viewpoint] : Grandparent, grandfather mother sues a view to visit children of grandchildren, grandson, can consult the relevant provision that parents visits children is carried out.
17, children whether sue the parental one party that does not bring up directly to fulfill visit obligation?
According to " marriage law " thirtieth 6 regulation, the parents after the divorce still has the right that bring up and teachs and obligation to children. Visit belong to the compulsory category that bring up and teachs, sue the parental one party that does not bring up directly to fulfill those who visit obligation to children, should grant to support.
18, should deny in divorce case handle along with all the others to visitting authority issue?
The party in divorce case did not advocate those who visit authority, appeal to to reduce party tired, ought to to party Shi Ming, inform party to be able to visit authority issue to put forward litigant request. Party does not put forward lawsuit to request, be based on do not accuse the principle that ignore, visit authority issue not to grant to handle in divorce case.
19, after people court has visited authority exercise time, means to make become effective judgment lawfully, party whether sue a request to change all right again?
After people court has visited authority exercise time, means to make become effective judgment lawfully, if party counterpoises to visitting,exercise time, means produces new requirement, form exceed the new fact besides judgment of original become effective, do not accept the obligation that sentences force already, belong to the action of the first impression below new fact and reason, party visits authority issue to sue those who request change again, should grant to accept.
20, does stepfather mother children concern whether reach how to remove?
Remarry the relation is stopped, no matter because,be divorce or it is to be born to parents dies and be stopped, the relation between stepfather mother and afterwards children all does not remove of course.
Raise the stepfather mother children that teachs a relation to been form, because give birth to father and stepmother or strange mother and stepfather divorce to bring about,remarry the relation stops, if stepfather mother does not agree those who raise minor afterwards children to continue, relation of stepfather mother children can remove, this children should be brought up by strange father and mother.
Raise the stepfather mother children that teachs a relation to been form, because give birth to father or strange mother death to bring about,remarry the relation stops, do not allow to remove commonly below the case with afterwards minor children stepfather mother children concerns. But if give birth to the other one party in parents to be willing to get minor children,answer, relation of stepfather mother children can remove.
After female to forming the stepson that raises educational concern manhood, relation of stepfather mother children does not allow to remove commonly. But if bilateral classics negotiates consistent or bilateral relationship,aggravation brings about stepfather mother or afterwards children position removes stepfather mother children concerns, can remove. But remove after the relation, use capacity to having fatigue or the stepfather mother that be badly off, grown afterwards children still should assume the obligation of support help.
Raise the stepfather mother children that teachs a relation to was not being formed, both sides is affinity only, remarry the relation stops, nature of relation of stepfather mother children removes.
21, the provide for that parents and children sign an agreement to prevent children is compulsory, after the event whether does requirement children fulfil provide for obligation? If both sides signs consultative agreement to abandon a family with children mutual belongings, successive avoid obligation of its provide for for the condition, should manage like where?
According to " marriage law " the 21st regulation, children has the obligation of support help to parents, filial nonperformance provide for is compulsory, do not have labor ability or the parents that be badly off, requirement children pays the right of solatium. Provide for parents is legal obligation of children, parental children cannot divide legal right obligation to concern through consultative solution. Parents and children sign an agreement to avoid provide for obligation of children, not cloggy parents is asking children fulfils provide for obligation afresh when necessary.
Parents of filial provide for is legal and the obligation that do not have additional requirement, both sides signs consultative agreement to abandon a family with children mutual belongings, successive avoid provide for obligation for the condition, this agreement violated law mandatory regulation, should belong to invalid, parents of after the event asks children fulfils provide for obligation, should grant to support. Involve a family to share belongings, successive dispute to belong to another law to concern, party can be solved separately.
22, parents did not fulfill duty to rear, children whether does the requirement avoid provide for obligation?
Marital family concern is not commodity to exchange a relation, parents brings up place to use up responsibility size to children, cannot become children to ask to avoid the argument of provide for obligation. Because of economy in parents ability is restricted or other and objective reason did not fulfill the case of duty to rear to fall, children asks to avoid provide for obligation, do not grant to support. But parents ever existed to children serious family force, mistreat, the behavior such as abandon, intended crime, children asks to avoid provide for obligation, should grant to support.
4, divorce belongings problem
23, during marital relation puts add, if one party produces the action such as force of extramarital affair, executive family, gamble,both sides of husband and wife concludes, the agreement of belongings abandons when the divorce, when the divorce whether the basis that serves as a judgment?
During marital relation puts add, if one party produces the action such as force of extramarital affair, executive family, gamble,both sides of husband and wife concludes, the agreement of belongings abandons when the divorce, do not belong to " marriage law " the case of agreement of belongings of husband and wife of the 19th regulation. The one party of husband and wife that fault does not have when the divorce with husband and wife the view breaks up belongings of husband and wife accordingly for belongings agreement, do not grant to support, but in break up husband and wife when common property, answer to consider the factor such as party fault circumstance integratedly, take care of to having the take into consideration the circumstances of one party of husband and wife of fault to give, in order to balance bilateral interest.
[another kind of viewpoint] : During marital relation puts add, if one party produces the action such as force of extramarital affair, executive family, gamble,both sides of husband and wife concludes, the agreement of belongings abandons when the divorce, for party true meaning expresses, not lawbreaking mandatory regulation, reflected husband and wife ought to the legislative spirit of mutual faithfulness, accord with social morality standard, the one party of husband and wife that fault does not have when the divorce advocates what break up belongings of husband and wife accordingly, should grant to support.
24, both sides of husband and wife signs faithful agreement to if one party disobeys faithful obligation to will compensate for penalty due to breach of contract of other one party or spirit to damage solatium,agree, the effectiveness that one party of husband and wife asks to confirm faithful agreement or with husband and wife other one party disobeys what the view assumes responsibility for faithful agreement, should manage like where?
Agreement of faithfulness of husband and wife is both sides of husband and wife after before marrying, perhaps marrying, obligation of faithfulness of husband and wife is not violated during putting add to make sure both sides concerns in marriage and the agreement with penalty due to breach of contract of written form agreement or compensation responsibility.
Husband and wife is loving the category that belongs to affection morality domain, the faithful agreement that signs between husband and wife should act on consciousness of honest credence principle to fulfill by party, the effectiveness that one party of husband and wife asks to confirm faithful agreement or with husband and wife other one party disobeys what the view assumes responsibility for faithful agreement, do not grant to accept; Had accepted, the ruling is rejected sue.
25, donative to children provision is involved in divorce agreement, does donative person produce the right to had be notted transfer with donative money after the divorce for whether application cancel? Suffer give children to those who do not have independence give pay a request authority?
Divorce agreement is both sides of husband and wife balance interest, think after advantages and disadvantages, around a when marital relation removes and form organic whole, each content becomes independent each other already, mutual depend on sb or sth for existence. Accordingly, donative person produces the right to had be notted transfer with donative money after the divorce for, donative to children provision involves in applying for cancel divorce agreement, do not grant to support.
Divorce agreement agrees will specific belongings is donative children, nonperformance of one party of the husband and wife after the divorce gives Fu Yi Wu, other one party of husband and wife sues those who ask its are fulfilled, should grant to support. Suffer the obligee in giving children blame divorce agreement and obligor, fasten the beneficiary beneficiary of donative clause only, do not have independence to pay a request authority, its sue one party of requirement husband and wife as accuser or both sides fulfills those who pay obligation, the ruling is rejected sue.
[be aimed at the 2nd another kind of viewpoint] : Agree will specific belongings is donative in divorce agreement children, one party of the husband and wife after the divorce or bilateral nonperformance give Fu Yi Wu, other one party of husband and wife and suffer give children to all can sue a requirement to fulfill Fu Yi Wu.
26, is property right purchased to register to husband and wife when the divorce is filial under one's name reached in both sides of husband and wife or register only in filial under one's name praedial how should handle?
During to marriage the relation puts add, husband and wife purchases property right to register filial under one's name is reached in both sides of husband and wife or register only in filial under one's name praedial, the true meaning when both sides of husband and wife undertakes praedial property right is registered should be examined to express when the divorce, eliminate existence of both sides of husband and wife to dodge the creditor as far as possible through discriminating, avoid carries out the suspicion that waits for behavior.
During to marriage the relation puts add, husband and wife purchases property right to register what reach filial under one's name in both sides of husband and wife is praedial, should maintain commonly share for both sides of husband and wife and children. In property right in registering, did not agree to press the portion is shared, should maintain to be shared jointly.
During to marriage the relation puts add, husband and wife purchases property right to be registered only in filial under one's name praedial, if both sides of husband and wife approbates praedial property right consistently to register the true meaning in filial under one's name to be not will praedial donative children, this are praedial should regard husband and wife as common property commonly undertake breaking up; If one party of husband and wife advocates this are praedial,be husband and wife common property, other one party holds the donative property that is two pairs daughter, should be husband and wife by the view the one party of husband and wife of common property assumes quote responsibility, should hold the donative property that is two pairs daughter commonly otherwise, husband and wife cannot regard as common property when the divorce undertake breaking up. But the belongings agreement between husband and wife cannot defy be based on content advantageous position is official show public letter to happen praedial trading kindness the 3rd person.
27, one party of husband and wife yields with the money before marriage wholy-owned what purchase during marital relation puts add is praedial, property right is registered in contributive square under one's name, how should be its property maintained? This appreciation accrual of praedial generation should any cognizance?
One party of husband and wife yields with the money before marriage wholy-owned what purchase during marital relation puts add is praedial, property right is registered in contributive square under one's name, this are praedial the belongings before be marriage of one party of husband and wife is in those who send strange configuration to go up after marriage change, do not affect the quality of belongings, should hold the personal property that is one party of husband and wife, but the except that party has an agreement additionally.
Be based on the accrual of this praedial place generation, should make according to particular case maintain. If purchase this praedial purpose,be for investment, the appreciation profit that generates should be maintained for husband and wife common property.
28, the appreciation after the stock marriage that buys before marriage of one party of husband and wife, other one party of husband and wife whether does the request break up appreciation part?
To the appreciation after the stock marriage that buys before marriage of one party of husband and wife, if be bought before marriage stock, marriage hind did not undertake operational to stock account, the stock causes rise in value because of market level change, this kind of appreciation is natural appreciation, according to " marriage law explains 3 " the 5th regulation, this appreciation is the personal property of one party of husband and wife, other one party of the husband and wife when the divorce requests to break up appreciation part, do not grant to support. If one party of husband and wife undertakes operational to the stock account before marriage, this kind of appreciation is active appreciation, belong to one party to invest obtained profit with personal property, according to " marriage law explains 2 " eleventh regulation, this appreciation is husband and wife common property, other one party of the husband and wife when the divorce requests to break up appreciation part, should grant to support.
29, " marriage law explains 3 " disbursement money still is borrowed to reach jointly after the bilateral marriage of the 10th regulation answer relatively part of property rise in value, register one party to undertake compensating to another by property right, how should be this compensation amount calculated?
Compensation amount can calculate by the following formula: [÷ of amount of principal and interest still is borrowed after marriage (＋ of price of the house when buying should return loan interest amount) ÷ of price of the house when × divorces 2] . If be in an amount of compensation of earning of the computation in the case is apparent when the in part that still lends amount of principal and interest under marriage hind, should according to " marriage law " thirtieth 9 principles of the first regulation, sentence the one party that makes acquire property right to offer other one party reasonable compensation.
30, according to of both sides of husband and wife " marriage law " how should be the 19th effectiveness that property of the first reached husband and wife makes bond maintained?
According to of both sides of husband and wife " marriage law " property of the 19th husband and wife that manages the first times makes bond all have legal sanction to both sides of husband and wife. When to praedial content when both sides of husband and wife authority generates controversy, ought to respect the true meaning between husband and wife to express, the property of husband and wife that manages according to both sides makes bond fulfill, person of right of other people of first protection fact, unfavorable register with property right as the only basis that affirms praedial authority is belonged to, but do not register cannot defy well-meaning the 3rd person.
31, the effectiveness that will surely the agreement that divorce belongings breaks up an agreement to be belonged to to praedial authority deny adaptability in tactics of direct generation content to move? Whether does antagonism creditor apply for to carry out?
The divorce belongings that both sides of husband and wife signs breaks up the agreement that belongs to to praedial authority in the agreement not to produce the effectiveness that content adaptability in tactics moves directly, one party of husband and wife can be based on creditor's rights to request authority only the bond that view of other one party of Xiang Fu wife performs change of praedial matter right to register is compulsory. Below the condition that did not change lawfully in person of praedial property right, divorce belongings breaks up the agreement that belongs to about praedial authority in the agreement not to have confrontation the effectiveness of creditor's rights of the 3rd person.
Monetary creditor's rights is carried out in, spouse of person be executived is closed down according to what implementing award, the copy clerk of become effective law that the sequestered, other proposal that before freezing, makes affirms to divorce belongings breaks up an agreement puts forward to eliminate to carry out demur, should grant to support; Be carried out what person spouse basis implements award to be closed down, the copy clerk of become effective law that the sequestered, other proposal that after freezing, makes affirms to divorce belongings breaks up an agreement puts forward to eliminate to carry out demur, do not grant to support.
In be not monetary creditor's rights to carry out, the copy clerk of become effective law that spouse of person be executived affirms to divorce belongings breaks up an agreement according to other case puts forward to eliminate to carry out demur, this law copy clerk is made to carrying out the authority of mark to belong to different maintain, ought to inform spouse of person be executived to apply for rehear to perhaps be solved through other program lawfully.
[be aimed at the first another kind of viewpoint] : The divorce belongings that both sides of husband and wife signs breaks up the agreement that belongs to to praedial authority in the agreement not to produce the effectiveness that content adaptability in tactics moves directly, one party of husband and wife can be based on creditor's rights to request authority only the bond that view of other one party of Xiang Fu wife performs change of praedial matter right to register is compulsory. Below the condition that did not change lawfully in person of praedial property right, divorce belongings breaks up the agreement that belongs to about praedial authority in the agreement whether antagonism the creditor's rights of the 3rd person, the property that should pass creditor's rights of the authenticity that examines divorce agreement, the 3rd person, right is obtained origin and time, praedial the element such as the fault that has the circumstance, account that did not handle property right change the name of owner in a register to register formalities, party gives integratedly judgement.
32, how should be belongings of husband and wife judged to make bond and property of husband and wife in judicatory practice donative agreement, how should be its effectiveness maintained?
Belongings of husband and wife makes bond be not in the light of a certain or certain and specific belongings is attributive the agreement that make, to belongings of husband and wife the relation will arise run-of-mill, the sanction of catholicity, what its effectiveness reachs belongings of Yu Fu wife is all. Belongings of husband and wife is donative the agreement is both sides of husband and wife the separate disciplinary action to individual belongings, have the one-time, characteristic that changes individually, its effectiveness not as good as at other the belongings without special disciplinary action. What former end depends on eliminating statutory worth to make is applicable, the right that latter purpose depends on changing a specific property is attributive, do not involve the choice that belongings makes.
The belongings of husband and wife that both sides of husband and wife concludes makes bond have legal sanction to both sides, any one party do not get change of do sth without authorization or cancel.
One party of husband and wife is before marriage during marital relation puts add, perhaps agree the individual all praedial donative other one party or agreement are shared to press a portion, share jointly, belong to belongings of husband and wife donative agreement, donative just be in cancel is donative before donative praedial change is registered, another view fulfills, should according to " contract law " the 186th regulation processing.
33, during marital relation puts add one party of husband and wife with personal property contributive buy the house that enters a room to change with individual name, property right is registered in contributive square under one's name, is building right belonged to how should maintain?
During marital relation puts add one party of husband and wife with personal property contributive buy the house that enters a room to change with individual name, property right is registered in contributive square under one's name, contributive square view is personal property when the divorce, do not grant to support, unless party has additionally,agree or give those representing capital can quote proves this building obtain as other as husband and wife one party to did not concern and other one party of husband and wife won't because of this interest is damaged. In maintain for husband and wife the premise of common property falls, can be opposite according to the circumstance when the divorce a those representing capital is proper much cent.
34, enjoy oneself length of service and already died is the right that the spouse buys a room to change a room after privilege of length of service before one's death belonged to how should maintain?
The room changes a room is national ground after all sorts of elements such as population of worker length of service, post, salary, household consider integratedly, the house that worker policy sex offers favourable welfare on computation is worth in valence, welfare of privilege of sex of this kind of policy has person and property double attribute, belong to property rights and interests. Live the spouse enjoys him length of service and already died the spouse buys a room to change a room after privilege of length of service before one's death, it is right original bear the adopy that hires advantageous position and change, this kind of room changes a room to should be maintained commonly for husband and wife common property.
35, does parents go for children wholy-owned how to buy praedial property to should be maintained?
Parents goes for children wholy-owned buy praedial, outside having an agreement additionally except party, can press the following case to handle respectively:
(１ ) one party parents goes wholy-owned those who buy is praedial, no matter this are contributive,behavior happening still is marriage hind before marriage, property right is registered in her children under one's name, this are contributive can maintain those who be pair of her children is donative, this are praedial the personal property that is contributive square children.
(2) one party parents goes wholy-owned those who buy is praedial, no matter this are contributive,behavior happening still is marriage hind before marriage, property right is registered in under one's name of filial both sides or under one's name of children of other one party, this are contributive can maintain those who be pair of children both sides is donative, this are praedial can maintain to be shared jointly.
(3) bilateral parents goes jointly before marriage wholy-owned those who buy is praedial, no matter property right is registered in one party children or under one's name of filial both sides, this are contributive can maintain be opposite for parents of respective children donative, this are praedial can maintain according to respective parents for both sides contributive portion is shared by the portion.
(4) bilateral parents goes jointly after marriage wholy-owned those who buy is praedial, property right is registered in under one's name of one party children, this are contributive can maintain be opposite for parents of respective children donative, this are praedial can maintain according to respective parents for both sides contributive portion is shared by the portion.
(5) bilateral parents goes jointly after marriage wholy-owned those who buy is praedial, property right is registered in under one's name of filial both sides, this are contributive can maintain those who be pair of children both sides is donative, this are praedial can maintain to be shared jointly.
36, part of parents of the one party after marriage is contributive buy for children praedial, property right is registered in under one's name of contributive square children, how should be its property maintained?
" marriage law explains 3 " of the 7th regulation " after marriage by one party parents contributive what buy for children is praedial " , its are applicable premise is one party parents goes wholy-owned buy praedial case for children. Part of parents of the one party after marriage is contributive buy for children praedial, both sides of husband and wife pays surplus money, property right is registered in under one's name of contributive square children, this are contributive can maintain those who be pair of her children is donative, this are praedial when the divorce but according to " marriage law explains 3 " the 10th regulation processing, party has conventional except additionally.
[another kind of viewpoint] " marriage law explains 3 " of the 7th regulation " after marriage by one party parents contributive what buy for children is praedial " , its are applicable premise is one party parents goes wholy-owned buy praedial case for children. Part of parents of the one party after marriage is contributive buy for children praedial, both sides of husband and wife pays surplus money, property right is registered in under one's name of contributive square children, contributive to parents part should according to " marriage law explains 2 " the 22nd regulation, maintain those who be both sides of pair of husband and wife is donative, party has conventional except additionally; In specific break up appeal to contend for praedial when, can give to giving children of those representing capital proper much cent.
37, parents is children contributive buy praedial, after the event with leasehold for the requirement is returned contributive still, filial position is contributive for donative, should manage like where?
Parents is children contributive buy praedial, after the event with leasehold for the requirement is returned still, filial position is contributive for donative, should abide by to maintain the principle of whose quote, assume by parents contributive for leasehold quote responsibility, parents cannot contributive for leasehold offer sufficient evidence to prove to bring about contributive property to be in true bogus when unidentified condition, answer to assume quote incapable responsibility by parents, maintain this contributive those who be two pairs daughter is donative.
38, should mutual building be like punish of do sth without authorization of one party of husband and wife to manage where?
" marriage law explains 3 " eleventh the regulation is applied to only " register in under one's name of one party of husband and wife, this punish " case, vendee is in accord with " matter right law " below case of the 106th regulation, the plea that its right obtains, should grant to support.
Right " register in punish of one party of under one's name of both sides of husband and wife, husband and wife " and " register in under one's name of one party of husband and wife, punish of other one party of husband and wife " case, but according to " marriage law explains one " regulation of the seventeenth binomial, in vendee can quote proves " reason believes its are both sides of husband and wife common meaning expresses " , although did not finish praedial authority to belong to move to register, the plea that its right obtains also should give support.
To " reason believes its are both sides of husband and wife common meaning expresses " , normally can from party previous action whether enough is caused believe firmly (attendant did not express to object) , whether to obtain from public site (through intermediary) , formalities whether all ready (oneself a power of attorney of original of attendant, certificate, accredit) wait for an element to give integratedly judgement.
39, does with husband and wife collective money yield when the divorce endowment obtain register the finite liability company in one party under one's name (do not include company of husband and wife) should equity manage like where? How should equity value decide?
During marital relation puts add, one party of husband and wife with husband and wife collective money yields endowment the obtained equity that registers the finite liability company in one party under one's name, ought to belong to husband and wife common property. Be based on finite liability company endowment add up to gender and person to add up to sexual characteristic, the to this kind of equity processing when the divorce, want to set out from the principle that is helpful for settling dispute of husband and wife already, want utmost ground to had done the interest with other interests person to coordinate again, cannot enroach on is other of partner agree authority and preferential buy the right such as authority.
If both sides of husband and wife is broken up with respect to equity,talk things over consistent, can press the following case to handle respectively:
(１ ) both sides of husband and wife talks things over consistent equity portion or the spouse that transfer this partner entirely, majority shareholder agrees, other shareholder expresses clearly to abandon preferential buy right, can break up equity in proportion, the spouse of this partner can become firm partner.
(2) both sides of husband and wife is made over with respect to equity portion and make over the item such as the price to talk things over after agreeing, majority shareholder does not agree to make over, but be willing to buy equity in order to be the same as equal in value case, can undertake breaking up to transferring equity earnings cost. Majority shareholder does not agree to make over, also not be willing to buy equity in order to be the same as equal in value case, regard as agree to make over, can break up equity in proportion, the spouse of this partner can become firm partner.
If both sides of husband and wife is broken up with respect to equity,cannot talk things over consistent, can press the following case to handle respectively:
(１ ) both sides of husband and wife all advocates an as a temporary measure to be willing to be managed jointly with the other side, other shareholder majority agrees and express clearly to abandon preferential buy right, can break up equity in proportion. Both sides of husband and wife all advocates equity but do not wish to be managed jointly with the other side, can pass contest price pattern to acquire equity finally by who certainly, if the spouse of partner acquires equity, should agree via other shareholder more than half and express clearly to abandon preferential buy right; Obtain the one party of equity, answer to go up in the foundation of value of affirmatory company equity, offer another corresponding economy compensation.
(2) the spouse of partner abandons equity holding compensation fund, answer to go up in the foundation of value of affirmatory company equity, offer the spouse of partner corresponding economic compensation by partner one party; Partner one party abandons equity advocating those who compensate a paragraph, should be on firm to company equity value base, offer partner one party corresponding economic compensation by the spouse of partner, but should agree via other shareholder more than half and express clearly to abandon preferential buy right.
(3) both sides of husband and wife all is not willing to acquire equity, can according to " company method " relevant provision transfers equity the 3rd person besides other shareholder or partner, break up lawfully to transferring cost. Transfer equity to the 3rd person beyond partner, should agree via other shareholder more than half and express clearly to abandon preferential buy right, majority shareholder does not agree to make over, also not be willing to buy equity in order to be the same as equal in value case, regard as agree to make over. Nobody take over, regard other shareholder as to agree to make over, can break up equity in proportion, the spouse of this partner can become firm partner.
Company rules makes over what have a regulation additionally to equity, set from its.
When equity value is evaluated, the company that can order party and equity location provides the data such as the financial accounting forms for reporting statistics that evaluates place to need. Because of business management disorder, accountant Zhang book is not complete and refus does not offer business operator the reason such as financial information brings about equity value to cannot be evaluated, can take the balance sheet that put on record, profit and loss to key of door of duty Wu, The Ministry of Commerce and Industry the financial data such as the year forms for reporting statistics that watch, net assets watch and this company publish is handed in grant to evaluate a company to assess equity value. If cannot be moved,take afore-mentioned financial data, can consult the business income of the company with the operation in course of study of local person of the same trade and similar level or value of equity of profit check and ratify. Of the equity value demur with certain to depending on powers and authorities of office interested parties, ought to provide the financial data that can confirm its advocate.
40, should where manage is like to person insurance contract in divorce case?
Person insurance cent is life-insurance, accident injury insurance and health to be sure. Be sure to person in divorce case contract, outside having an agreement additionally except party, can press the following case to handle respectively:
(１ ) the case that already won insurance gold
During marital relation puts add, one party of husband and wife regards insurant basis accident as contract of injury insurance contract, healthy insurance harmful insurance gold, basically use at the specific utility such as the victim's cure, life, have person quality, should maintain for personal property.
The insurance gold that the life-insurance contract that one party of husband and wife regards beneficiary beneficiary basis as to pay a condition in order to die to give wins, of the beneficiary beneficiary in this insurance contract appoint itself to understand the specific concern between policy-holder and beneficiary beneficiary with respect to the watch, those who reflected insurance gold is exclusive quality, according to " marriage law " the 18th regulation, should maintain for personal property.
During marital relation puts add, the insurance gold that the has cost of money insurance contract that basis of one party of husband and wife pays a condition with living to be to certain age wins, this insurance has certain investment property, the insurance gold that wins from this belongs to yield, should maintain for husband and wife common property.
(2) have not win insurance gold case
During marital relation puts add, with husband and wife common property is cast protect, the person insurance contract inside insurance period of efficacy still is in when the divorce, both sides of husband and wife asks to break up the cost of money of insurance policy, should grant to support.
If policy-holder and insurant all are one party of husband and wife, both sides of the husband and wife when the divorce is OK the agreement is retreated protect or continue to fulfil insurance contract. Policy-holder is not willing to continue to cast those who protect, the share of insurance policy cost of money that the underwriter returns should regard husband and wife as common property processing; Policy-holder is willing to continue to cast those who protect, the in part that policy-holder ought to pay insurance policy cost of money gives another.
If one party of husband and wife is policy-holder, other one party is insurant, both sides of the husband and wife when the divorce is OK the agreement is retreated protect or continue to fulfil insurance contract. Negotiate those who protect to be retreated consistently, the share of insurance policy cost of money that the underwriter returns should regard husband and wife as common property processing; Negotiate those who protect to be willing consistently to continue to cast, obtain insurance contract one party through making over, the in part that should pay insurance policy cost of money gives another. If policy-holder asks to retreat,protect, and insurant asks to continue to cast protect, according to principle of insurant center principle, insurance contract should continue to fulfill, the in part that the one party that acquires insurance contract interest should pay insurance policy cost of money gives another.
(3) the processing that buys person insurance for children
During marital relation puts add, the insurance gold that the person that one party of husband and wife or both sides buy for minor children is sure to obtain, if minor children did not die, should belong to minor children only all. If minor children dies, safe the heritage that gold resides minor children.
When the divorce, if be the person that minor children buys,insurance contract still is in insurance period of efficacy, safe final increase vest in is minor children, what should be sure to should regard two pairs daughter as is donative, should not regard husband and wife as common property break up.
41, should where manage is like to violating a building in divorce case?
Illegal architectural is involved in divorce case, should prevent to pass people court civil judgment will violate building legalization, unless the executive authority is made,maintain clearly, should not be otherwise whether does cognizance building break the law in civil judgment.
Before illegal building legalization, party obtains legal fee, no matter be to break up illegal building to still decide its droit or use, all do not have legal basis, this kind of dispute does not grant to handle. Party position undertakes assessment intersected to violating architectural housing materials, do not grant to support. If violate what the building is instructed to demolish by the executive authority, party can is opposite of housing materials break up hold the right separately.
Illegal architectural vested interest, if rent income, attribute the belongings sex earnings during marital relation puts add, should regard husband and wife as common property lawfully give break up. Because the profit that has not gain does not have determinism, do not grant to handle.
In divorce case, party position breaks up room of small property right or decide droit of room of small property right or use, do not grant to handle.
42, successive fact happens during marital relation puts add, the one party of husband and wife that heir serves as after the divorce abandons acceding, other one party of husband and wife whether does the view abandon acceding to disable or recoup a loss?
According to " inheritance act " the 25th regulation, heir is in successive before the bequest after beginning is handled, can decide to accept according to oneself volition accede or abandon acceding, the one party of husband and wife that serves as heir need not ask for those who get other one party of husband and wife to agree to the punish of right of inheritance. View of other one party of husband and wife abandons acceding to disable or compensate for losing, do not grant to support commonly. But according to " top people court carries out inheritance act of ＜ People's Republic of China about carrying out ＞ the opinion of a certain number of problems " the 46th regulation, if spouse is other,the husband and wife that one party quote proves to serve as heir just abandons right of inheritance and Wu of nonperformance law definition brings about its rights and interests to be damaged, its disable about abandoning acceding or compensatory losing advocates, should grant to support.
43, how should the quote responsibility of joint liability assign husband and wife?
" the explanation that top people court involves statute of comfortable use of case of dispute over obligation of husband and wife to concern an issue about cognizance " before was being changed, responsibility of joint liability quote assigns husband and wife regular. In judicatory practice, while correct and applicable judicatory explains, want ascertain of aggrandizement powers and authorities of office, reasonable apply daily experience law and logistic deduction, should give to the interest of debtor spouse and creditor give attention to two or morethings, because responsibility of machinery allocation quote causes new judicatory judge,avoid unjust.
Sign jointly to both sides of husband and wife or admit posthumously of debtor spouse after the event and represent a form through other and common meaning (wait like phone, short message, small letter, mail) approbated debt, should maintain for husband and wife joint liability, assume quote responsibility by creditor.
One party of husband and wife is put in marital relation the family is with individual name during add the debt that daily life needs to lose, ought to above all illative for husband and wife joint liability, creditor need not quote proves whether this debt is used at the family to live daily. Debtor spouse advocates this debt does not belong to husband and wife of joint liability, the agree carries quote responsibility.
One party of husband and wife is put in marital relation the family is exceeded with individual name during add the debt that daily life needs to lose, ought to above all illative for individual liabilities, creditor advocates this debt belongs to husband and wife of joint liability, should quote proves this debt is used at husband and wife to collective life, joint production is managed or be based on both sides of husband and wife common meaning expresses.
44, during how limitting one party of husband and wife to put add in marital relation be during how limitting one party of husband and wife to put add in marital relation, with individual name " does daily life need the family " the debt that owes?
"Daily life needs the family " it is the necessary defray in showing the family lives daily, include education of communication of basic necessities of life, Medical Protection, transportation, entertainment and service to wait. Maintain whether be " daily life needs the family " the debt that owes, the element such as standard of economy of the state that should join state of income of utility of the liability amount, frequency that raise debt, debt, family, consumption level, husband and wife to live jointly, place and general society habits and customs is integrated give judgement.
The following case can serve as maintain exceed " daily life needs the family " place is indebted of Wu think element:
(１ ) liability amount exceeds family of average resident of debtor or place apparently of daily consumption level;
(2) feeling of husband and wife is in when debt happening not harmonious, live apart, in consultative divorce or divorce suit process;
(3) creditor is known perfectly well or should know debtor to undertake the illegal crime activity such as gamble, drug taking still big raise debt;
(4) creditor knows perfectly well debtor big already and indebted cannot repay, still continue to lend money.
45, how to limit husband and wife be in joint liability " does collective life, joint production manage husband and wife " the debt that owes?
"Husband and wife lives jointly " show husband and wife is consumed jointly normally or form husband and wife the defray of common property. "Joint production is managed " the case that shows husband and wife decides production manages other one party of item or one party accredit to decide production manages matter jointly normally.
The following case can use at as cognizance debt " collective life, joint production manages husband and wife " think element:
(１ ) during raising debt, the family purchases a large amount of property or put in big spending case, of source of financing of inexplicability of both sides of husband and wife;
(2) the investment that cites debt to be used at both sides of husband and wife to be engaged in jointly, management item;
(3) the investment that cites debt to be used at debtor home remedy to be engaged in, management item, but debtor spouse shares investment to manage profit.
The following case can serve as maintain those who be debtor individual liabilities to think element:
(１ ) during raising debt, the family did not purchase a large amount of property or put in big spending case;
(2) feeling of husband and wife is in when debt happening not harmonious, live apart, in consultative divorce or divorce suit process, debtor spouse has steady income and can preserve a family of regular pay;
(3) debt utility points to debtor to undertake the illegal crime activity such as gamble, drug taking;
(4) debt utility points to burden of debtor home remedy and family collective life, joint production runs the activity that have nothing to do, if free assures,wait;
(5) debtor spouse manages action to the investment of debtor complete not know the inside story, and did not enjoy investment to manage profit.
46, the one party of the legal representative that regards finite responsibility as company or Inc. , husband and wife that controls a partner concerns to during putting add, be used at the company with individual name loan or be offerred for company borrow or lend money in marriage assure, how should be this debt property maintained?
The one party of the legal representative that regards finite responsibility as company or Inc. , husband and wife that controls a partner concerns to during putting add, be used at the company with individual name loan or be offerred for company borrow or lend money in marriage assure, if husband and wife is bilateral what did not raise debt jointly is acceptability, loan was not used at husband and wife to live jointly, this loan or assure debt should be maintained according to the relevant provision of company method for debenture Wu, should not maintain commonly for husband and wife joint liability. But if debtor is in loan or the collection when assuring economic interest is used at domesticity, or loan and assure behavior and husband and wife live jointly closely related, husband and wife is collective during perhaps putting add with marital relation of belongings how many have immediate concern, criterion this loan or assure debt should be maintained for husband and wife joint liability.
The one party of the legal representative that regards husband and wife as company, household company, husband and wife that controls a partner concerns to during putting add, be used at the company with individual name loan or be offerred for company borrow or lend money in marriage assure, this loan or assure debt should be maintained commonly for husband and wife joint liability.
The partner that one party of husband and wife regards one person as finite liability company is indemonstrable company worth is independent of the belongings at oneself, be used at the company with individual name loan during marital relation puts add or offer for company borrow or lend money assure, this loan or assure debt should be maintained commonly for husband and wife joint liability.
47, how should be because tort of one party of husband and wife reachs illegal criminality place,the debt of generation maintained?
Whether is the debt that because tort behavior place arises,judges one party of husband and wife husband and wife joint liability, whether was the key sharing an interest at examining a family. If the family passes the activity of debtor to be benefited from which, produce tort action in undertaking the activity such as domestic operation for example, share according to the interest, the principle that responsibility carries in all, should maintain for husband and wife joint liability; If the activity of debtor is not for domestic interest and the family also was not benefited from which, should hold the individual debt that is debtor.
Because one party of husband and wife violates the liability that criminality place produces, should hold the individual debt that is debtor.
48, is husband and wife collective debt whether give in executive phase maintain? Executive phase whether increase debtor spouse to be person be executived? Should the executive objection that debtor spouse raises be like where manage after out of court?
The hypostatic civil rights is compulsory problem between certain interested parties should be solved by adjudgement program, executive program basically is use use statute the problem of hypostatic right obligation that compulsive method solves party to fulfill adjudgement program not self-consciously to had decided. In executive program, in principle does not answer the obligation of civil and hypostatic right between party to undertake cognizance. Accordingly, to whether be husband and wife joint liability can be maintained through trying a program only, cannot give in executive phase maintain.
Increase person be executived to must follow legal principle principle, namely ought to law of be confined to and judicatory explain what set clearly to increase scope. Become effective judgment carries individual of one party of Ming Fu wife to be debtor only, executive phase is unfavorable increase debtor spouse to be person be executived.
If debtor spouse does not belong to husband and wife according to certain debt with carrying out,put forward to carry out demur for joint liability, the property that the department holds to to people the court takes executive step enjoys the hypostatic right that eliminates to carry out, after executive demur out of court, can according to " code of civil law " the 227th regulation, mention of executive demur appeal to.
If debtor spouse did not join suit, become effective judgment acknowledges this debt is husband and wife joint liability, debtor spouse is not what husband and wife puts forward to carry out demur out of court for joint liability with this debt, because this demur and become effective judgment are direct associated, debtor spouse can carry out the become effective judgment of the basis to apply for rehear to people court to regarding as only, debtor spouse mentions of executive demur appeal to, ought to not grant to accept, had accepted, the ruling is rejected sue.
5, successive problem
49, how should be effectiveness of the testamentary that print maintained?
In successive case, party advocates to print a form with the will the will is invalid only, do not grant to support.
To printing a will be from book will or allograph will, should form from the will get the judgement on dominant of He Ren volition. Will person operates the will that the tool that print makes personally, should maintain for from book will; Will person has state to last wish only and give to will content authenticity affirm, written testamentary makes what all finish by eyewitness dominant, should maintain for allograph will, whether effect accords with important document of allograph testamentary form.
50, public house bear hire powers and functions to deny successive?
Public house cent is in charge of for all public house and provide fair room oneself. The droit of public house belongs to a country or collective, enterprise, institution is all, party enjoys access only or bear hire advantageous position. Tenant dies inside the deadline that rent, heir asks to continue bear those who hire, can apply for to deal with tenant to change procedures to relevant unit, heir view accedes public house bear those who hire advantageous position, do not grant to support.
51, how to hold time of collective testamentary become effective? Below the circumstance that dies in one party of collective will person, live square whether will of change, cancel?
Collective will, it is two or person of two above will creates a will jointly, most common is husband and wife in judicatory practice collective will. Time of collective testamentary become effective can distinguish the following state is certain:
(１ ) each other of collective will person is heir, appoint the other side to be heir each other namely, become effective of the will when one party dies, live the will content of one party namely invalidation;
(2) appoint the 3rd factitious successor jointly, the will below the circumstance that this kind of will must die in collective will average per capita ability become effective;
(3) appoint the other side to be heir each other, appoint bequest to accede finally by the 3rd person, time of become effective of this kind of testamentary divides a level: One of collective will people die, the will content become effective that accedes each other, live to just obtain bequest according to the will; Die when person of the last will, the will is all become effective, will of basis of the 3rd person acquires property.
During collective will life is put, can represent will of change, cancel through common meaning.
Predecease of one party of collective will person dies, live to just can be changed only, the will content that cancel involves share of its personal property, but will content cannot be broken up, behavior of change, cancel violates collective will person common meaning is denotive except.
[be aimed at the 3rd another kind of viewpoint] : Collective testamentary content is restricted each other, mutual correlation, have the blame freedom sex of strict immanent whole sex and change, cancel. Predecease of one party of collective will person dies, live to just do not get will of change, cancel.
In August 2018
