One, about husband and wife the law of belongings of common property and one party sets
1, about husband and wife the regulation of common property
" marriage law " the seventeenth regulation: "Husband and wife puts add in marital relation during the following belongings of earning, gui Fu wife is collective and all: (One) salary, bonus; (2) production, management profit; (3) the accrual of intellectual property; (4) the belongings of successive or donative earning, but Benfadi 18 except of the 3rd regulation; (5) other ought to return collective all belongings. Husband and wife is right collective all belongings, have equal discretion. " " marriage law explains 2 " eleventh regulation: "During marital relation puts add, following belongings belongs to marriage law the " of the seventeenth regulation is other ought to return collective all belongings " : (One) the profit that one party gains with personal property investment; (2) accumulation fund of the housing allowance that both sides of male and female is obtained actually or ought to obtain, housing; (3) the endowment insurance gold that both sides of male and female is obtained actually or ought to obtain, go bankrupt find a place for compensation is expended. " " marriage law explains 3 " the 5th regulation: "The profit that personal property of one party of husband and wife generates after marriage, outside the breath that divide propagate and natural appreciation, should maintain for husband and wife common property. " " a certain number of specific opinions that top people court hears divorce case to handle belongings to break up a problem about people court " the 2nd regulation: "Both sides of husband and wife puts add in marital relation during the belongings of earning, for husband and wife common property, include: (1) the income of one party or bilateral labor income and purchased property; (2) one party or bilateral and successive, get given worth; (3) the economic interest that one party or both sides acquire by intellectual property; (4) one party or both sides are engaged in contracting, rent the accrual that waits for production, management activity; (5) the creditor's rights that one party or both sides obtain; (6) one party or bilateral other and lawful earning; (6) one party or bilateral other and lawful earning;;
2, the legal provision of belongings of one party of husband and wife
" marriage law " the 18th regulation: "Have one of following state, for the belongings of one party of husband and wife: (One) the belongings before the marriage of one party; (2) the charge such as cost of the medical treatment cost that one party is obtained because of the body by harm, disabled extra allowance for living expanses; (3) a Gui Fu decides in will or donative contract or wife the belongings of one party; (4) articles for daily use of one party appropriative; (5) other the belongings that ought to put in one party 's charge. " the 19th regulation: "During husband and wife can agree marital relation puts add the belongings before the belongings of earning and marriage returns collective and respective and all, all or the part is respective the part is collective and all, all. The agreement ought to use written form. Ambiguous without agreement or agreement, applicable Benfadi seventeen, the 18th regulation. During husband and wife puts add to marital relation the agreement of the belongings before the belongings of earning and marriage, have sanction to both sides. During husband and wife puts add to marital relation, the belongings agreement of earning returns respective all, husband or wife the debt that one party owes external, the 3rd person knows this agreement, with husband or wife an all belongings pay off. With husband or wife an all belongings pay off..
3, the distinction of belongings of one party of husband and wife and common property
Belongings of one party of husband and wife basically has 3 kinds: (1) the belongings before marriage; (2) articles for daily use of one party appropriative; (3) the specific property that one party acquires because of the fact of inactive passivity.
Husband and wife is collective the essence of belongings namely the both sides after marriage is collective just perhaps pass mental or the belongings of physical strength that work and creates actively and the belongings because of donative or successive earning.
2, of the house property that bring up an agreement because of bequeath and acquires attributive
" inheritance act " thirtieth sets, the citizen can be signed with bring up personAgreement of bequeath bring up. According to the agreement, bring up person assumes this citizen to lay the obligation that raises dead bury, enjoy the right that gets bequeath. The citizen can sign agreement of bequeath bring up with organization of collective system of ownership. According to the agreement, organization of collective system of ownership assumes this citizen to lay the obligation that raises dead bury, enjoy the right that gets bequeath.
Is agreement of bequeath bring up the double Wu contract with donative contract or other perhaps work contract?
" contract law " the 192nd regulation, suffer those who give a person to have one of following state, donative person is OK cancel is donative: ... (2) have bring up obligation to donative person and nonperformance; ... if agreement of bequeath bring up is medium,accept duty to rear of donative one party nonperformance that is to say, the other side is OK cancel is donative. And this regulation is to be in " contract law " eleventh chapter " donative contract " inside. This shows, agreement of bequeath bring up still is a donative contract substantially.
And, from bequeath bring up consultative content can see, those who accept bequeath is one party of husband and wife, is not bilateral.
Since agreement of bequeath bring up is donative belongings,put in a husband 's charge only or wife the donative contract of one party, basis " marriage law " the 18th the 3rd regulation, acquires because of agreement of bequeath bring up house property ought to belong to belongings of one party of husband and wife.
But, so understanding is not without the flaw. Above paragraphs is told, the both sides after marriage perhaps is passed jointly mental or the worth of physical strength that work and creates actively is average belong to husband and wife common property. Because its fulfilled bring up obligation,accepting the one party of bequeath belongings to be able to acquire property is, and fulfilling bring up obligation is a positive action, and have this property that positive action just acquired bequeath just about. According to this logic, during spouse concern puts add, the bring up that just pays " labor " of place correspondence the portion of the bequeath property that its acquire ought to belong to husband and wife common property.
