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近年来,《婚姻法》司法解释修改的实质走向是扩张婚内私产,具体包括两点:一是婚内房产以出资和登记确认归属,二是认定婚前财产的孳息、增值为婚内私产。自工业革命以来的性别革命,已令合伙型财产契约取代公益关系势成必然。然而《婚姻法》司法解释不断令婚产契约化,以三代家庭、老人及男权的立场,弱化核心家庭及女性的权利,彻底撕裂女性对家庭温情的合理期待。因此,婚姻关系契约应当是兼顾性别利益的财产契约,性别利益是鉴于女性在婚姻关系契约中的特别负担而给予女性的补偿及保留的利益,传统社会中的性别利益依靠伦理情谊化组织维系,包括婚价、婚书、婚产等婚约形式。现代法治社会应当做到:有限私产制,即家庭成员各自保有经济上之独立,同时也对家庭公产尽到各自之责任,不动产各自所有;当事人可在法定婚产制之外订立婚约,婚姻登记机关必须询问当事人是否订立婚约;婚约可以在登记之日选择,也可以在婚后变更。
In recent years, the essence of the revision of the judicial interpretation of the Marriage Law is to expand the private property in marriage. Specifically, it includes two points: one is the affirmation of ownership of property in the marriage and the registration and the second is the recognition of the fruits of the pre-marriage property and the increase of the value to the private property in the marriage. Since the Industrial Revolution, the gender revolution has made it inevitable for partnership-based property contracts to replace public-interest relations. However, the judicial interpretation of “Marriage Law” constantly makes the marriage contract contractual, weakens the rights of core families and women with the family of three generations, the elderly and the patriarchal power, and completely tearing women’s reasonable expectation of family warmth. Therefore, the contract of marriage relationship should be the property contract that takes into account the gender interests. The gender benefit is given to women’s compensation and retention benefits in view of the special burden of women in the contract of marriage. The gender interests in traditional society depend on the ethical and emotional organization, Including wedding, marriage book, marriage and other forms of marriage. In the modern law-based society, the limited private ownership system, in which the family members each have their own economic independence, and at the same time, make every effort to make public family property their respective responsibilities, and each and every real property belongs to them. The parties may enter into marriage contracts and marriage registrations The authority must ask whether the parties have entered into a contract of marriage; the contract of marriage may be chosen on the date of registration or may be changed after the marriage.