중국 혼인법상 부부재산관계 — 부부재산제와 이혼시 재산분할을 중심으로 —

Abstract

Regarding the problems of the division of matrimonial property on divorce, the couples' rights and interests are protected under the Chinese Family Law. But it is should be required to identify the specific property, which is the community property, in question on the revised law. In a concrete case of the division of property, they follow the Supreme People's Court's ruling. When couples divorce, the community property that should be dealt with by mutual consent according to some principles, the equality of the sexes, the consideration to the interests of children and women, the profitable principle for the life and demand, the regard to one party who has no negligence, and the principle which has no damages to the interests of the country, organization, and others. If the agreement is failed, the people's court should confirm the scope of the community property on the basis of the concrete circumstances. The community property is divided equally, when marital property contract is not made either verbally or in writing. It is division in kind and cash, and the price compensation that the specific measures for the division of property. In case of the division of the community property, the people's court should mediate between two parties in accordance with an agreement between both spouses. Furthermore, the mediation should be legal and complied with the principle of a voluntary approach. If the mediation is invalidated, the court will give a verdict according to the circumstances, which is about the conditions of the community property, the length of a marriage, the actual demands of production and real life, the source of property and so on. However, the several property, husband and wife own each one's special property individually that has been owned, inherited, and given, also the things are prepared before marriage, and that is acquired during marriage in the name of each one. Also the each spouse's clothes, household items and general tools and materials, which is purchased cooperatively during marriage, these are belonged to each one's special property. And the personal property, which is agreed to one's ownership between both sides before the marriage or during the marriage, it belongs to each one's property when the agreement is legal according to that agreement. About discharge an obligation, the community debt may be acquired to be paid cooperatively. If the community property is short of reimbursement or the property is belonged to each one's ownership, it will be paid by agreement of both spouses. On the other hand, personal debt, according to the laws in 1980, each spouse's debt is paid by the person who is responsible for the debt itself but the revised law in 2001 is repealed this provision, however the consequence are the same.