[Chengdu divorce cases senior attorney] divorce property distribution

DivorceThe division of common property　　

Along with our countryThe socialist market economyReform and development of the housing system, the joint property of husband and wife structure appeared diversified, especially housing and equity and other large value of property in a larger proportion of the joint property of husband and wife. In the case of divorce, dissolution of marriage is no longer the main contradiction cases, raising questions mainly focus on the marital property and their children, and the division of marital property is concentrated in housing, equity division. The husband and wife property in judicial practice segmentation of these key issues were discussed. Before the promulgation of the new marriage law a little problem identification, transformation and segmentation premarital personal property, the Supreme People's court has stipulated in the judicial interpretation in 1993: "where all personal property, after the common use, operation, management, housing and other large value of production after 8 years, precious life data after 4 years, can be regarded as the common property of the couple."

The revisedThe marriage lawDid not adopt this method in the judicial practice, is undoubtedly the legislative progress, eighteenth first stipulates party premarital property as personal property. Therefore, interpretation of the Supreme People's court "on the application of 'issues' marriage law of the people's Republic of China (a)" nineteenth pointed out: "the eighteenth marriage law stipulates a spouse for the property of all, not because of the continuation of marriage and into the joint property of husband and wife. Unless otherwise agreed by the parties." As the previous judicial interpretations and new judicial interpretation inconsistent, therefore should take the new judicial interpretation shall prevail.

The new marriage law today after some years, the practical operation in a divorce case, there are still many problems, for the role of law, guiding role is very clear, about the retroactivity, the new marriage law in some respects given retroactive effect. A case of obvious, such as the implementation of a couple married 8 years ago in the new marriage law, divorce now, in premarital personal property in accordance with the referee, is undoubtedly correct application of the new marriage law modified, a retroactive to the new law, but for ordinary people and has, is certainly not reasonable constraint imposed, people can only according to the laws at that time know, but the law after 8 years deprived of reasonable expectations of them, the original can be identified as common property still belongs to personal property, will inevitably cause a certain degree of inequality, and the new marriage law practice is added to each other in the provision of appropriate compensation, the court judgment standard of course is the implementation of standards, in accordance with the judicial interpretation is an effective legal prosecution trial, rather than get married at the time of the marriage law, the new marriage law, judicial interpretation is not adopted at the time of the law as the basis of decision, but given the new marriage law have retroactive effect, the new marriage law for 10 years, but such cases are still many, if it relates to inheritance, is more complex, and even different decision, the law applicable Right, but it is unacceptable in the pursuit of justice, "justice", the majority of judges is not contrary to the judicial interpretation stipulates the exercise of such discretion rights provisions, so that many people can't understand the new marriage law. After all, not everyone is a legislator, but it is precisely this point, can show the current legal system Chinese is problematic in this regard, this point, only the extension.

Provisions of the marriage law of our country, a party of men and women for a divorce, but divorce proceedings to the people's court. In the trial practice of divorce, one party to dissolve the marriage relationship in the request at the same time, and for the raising of children, also requires the division of common property, divorce court cases, the merger of the plurality of litigation litigation proceedings in a trial, procedural law with called v.. With the object with joinder including body of litigation and litigation, litigation and litigation divorce case object merging, i.e. in the same procedure, with independent of several litigation to trial.

Litigation is the pursuit of the merger of lawsuit efficiency results, such as some scholars think, two or more action as a simplification, cases to save both time and manpower, but also to facilitate the parties to litigation, exempt from litigation. Joinder of causes of action aims to simplify procedure, facilitate the parties to litigation, the people's court to prevent the contradictory judgments on the same subject. At the same time, if the and and the trial proceedings makes complicated, resulting in inconvenience in the trial of cases, the timely and fair trial, but also can be separated from the merger trial to trial alone, separate v..

The Civil Procedure Law of our country does not appeal to the merger and separation of the provisions of the provisions of mandatory, but only in the 126th article, the plaintiff claims to increase, the defendant files a counterclaim, the third party claims related to the case litigation request, may adjudicate. The divorce case practice practice v. merger, in addition to the litigation efficiency considering legislative entity, more and our marriage and family law system about marriage, China revised law is still in marriage, family, and property in one of the legislation of the history of ideas on marriage, family bound, development a large, resulting in practice in the divorce case, must be the trial division of property, the upbringing of children. Of course, this to a certain extent, simplified the procedure, but also solve the parties after the divorce of any menace from the "rear". But along with the reform and development of Chinese society, great changes have taken place in people's thought, personality, marriage quality attention, divorce freedom to pursue, put forward many new requirements on the trial of divorce cases, are increasingly exposed shortcomings the merger trial:

First of all, with the action of divorce cases, increased the court excess labor, also aggravate the parties v.tired. Lawsuit and divorce child support, division of property litigation law belong to different relationship between ownership and different dispute, to its consolidated, the law must be investigated and verified each litigation facts, examined all the reasons for the request.

So the divorce cases each claim joinder of parties, not as common as is common in litigation or similar subject matter of litigation, is also different from some of the same legal fact based on the different object joinder of claims, combined with the case can be used as evidence, the same procedure, data the same trial organization, once ascertaining facts, can improve work efficiency, avoid duplication, save costs; merger and divorce cases, at best is omitted, the admissibility of the prosecution procedure, hearing procedure without simplification, in many cases increased the court excess labor, aggravate the parties v.tired.

Because the child support, division of property in divorce litigation request was established as the premise, the request was not divorce, child support, property division is not controversial, it is not necessary to continue the trial. The parties in the prosecution of the divorce, the request is established, only waiting for the trial had been determined, but the merger trial has asked for a divorce suit before the trial to determine together, this will cause the court sometimes hears a case of divorce, spend a lot of time, effort to find out the common property of husband and wife both husband and wife, their economic capacity and the child growth, but according to feeling of husband and wife is not broken, results of judgment are not allowed to divorce the labour is in vain, which increases the court surplus labor to a large extent, to some extent also damages the dignity of the law. At the same time, the parties in the divorce proceedings, divorce litigation is established more clearly, in order to fully exercise their litigation rights, once in the divorce proceedings, it would be necessary for a divorce, child custody litigation and property complaints collected the evidence, material preparation, hire lawyers, this is clearly irrational aggravated the burden of litigation divorce is not tenable. secondly, divorce cases in litigation with, affected the case fair, timely. A divorce case for a divorce, child custody hearing merger and division of property complaints, will inevitably lead to the several independent action of mutual influence, mutual constraints, affect the court from the legal facts and reasons to request for the proceedings start, make fair judgment to the litigant request. For example, sometimes the judge handling the divorce case, taking into account the child support, property division especially compensation dispute is relatively large, relatively difficult treatment, improper handling will intensify the contradictions, the parties in order to save trouble, will not seriously review the feeling of husband and wife, not the legal standard to measure the feelings of both sides is broken, but the simple act, decisions are not allowed to divorce.

So over and over again not divorce, lead the couple also be dead beat, loss of legal justice row have exposed trial function. In addition, in practice often encounter this kind of situation, that is a party put forward a divorce, the other party is determined not to agree to divorce, unless very high compensation in the economy. These parties for their marital status very well, they know, love has been unable to restore, live together without what meaning, but they fear divorce child rearing, processing property segmentation problem to their disadvantage, and would rather sacrifice their own happiness in marriage, nor agreed to lift the relationship of marriage, eventually resulted in two further intensification of contradictions,. But the judge in order to ease the tensions between the two sides, often decisions are not allowed to divorce, or in a judgment granting a divorce at the same time, in the custody of the children, the division of property and other issues to an angle, this also causes the child support, division of property litigation unfairly.

Secondly, child rearing, the joint property of husband and wife situation more complex cases, custody of children, the division of property lawsuit trial will affect the timely trial divorce litigation. For example, some couples property and family property mixed together, or marital property requires a special department for the evaluation of marital property, the household division or appraisal, will severely delayed action for divorce proceedings, at the same time, also increased the opposition parties.

With divorce cases in litigation, not conducive to the full protection of the parties have the right of action. relative to each subject of litigation, the parties are entitled to make statements, defenses, the burden of proof, Zhi syndrome. In divorce cases, the merger trial procedure and raise children divorce, division of property complaints, the child support, division of property in a divorce suit attached to, their legal rights can not independence, also makes the child support, property division independent litigation system without the development and application of full, cannot guarantee the full have the right of action. The establishment of the second child support, division of property litigation depends on the first divorce litigation founded or not, when one of the parties does not adhere to the divorce case, behoove won't make statements, child support and property division defense and testimony, this has not been broken, for those who love, is expected to good relationship between husband and wife's case, can be an external expression of feeling of husband and wife is good, but for those feelings that have been broken, unable to improve the relationship between husband and wife divorce, one party is determined to child support, property division, defense refused to presentation of testimony, words, it is not advisable, this will cause the parties against her will give up their own should enjoy the rights, but also an impartial trial court.

Merging several litigation divorce court, do not meet with the aim of trial, and also has many shortcomings, but in practice it is difficult to break the habit, the merger trial in the author's opinion, it is necessary in legislation specific action for divorce in principle with the child raising, division of property complaints of separate trial, specific and feasible system design and in the actual operation. First, V. and children divorce, division of property litigation support are proposed, Split case acceptance, separate v.. Separation divorce proceedings, characteristics can be fully embodies the litigation, the litigation participants can strictly in accordance with the basis of marriage, marriage and marriage prospects standard couples are broken, and impact property, reduce child problems of marriage lawsuit system, the realization of legal justice trial.

Especially the increase in couples rational thinking of marriage, is conducive to the court mediation, but also alleviate the opposition parties in some extent, conducive to social stability. Second, child support, division of property complaints put together, the merger trial. After their marriage was dissolved, child support, property division issues exist together, and they are the same, can be consolidated, and its trial should have continuity and supplement with a divorce, the continuous performance in divorce cases have been identified and consolidated legal facts related can be directly quoted, this course is considered from the save the judicial resources; supplementary performance in the custody of the children and the division of property in a divorce action is produced by the action litigation, also is the marriage is dissolved must handle the disputes, so that the parties need not worry lifting the heart after the marriage, property, children are not just and reasonable solution. Child support, division of property in a divorce and separation, fully embodies the independence and integrity of the litigation system, but also to protect the independence of litigation rights and obligations of the parties, there are a fair trial for the court. In addition, because the child support, division of property complaints can be separated with a divorce and was put forward, which is to expand the scope of the marriage registration authority accepts the divorce application, implementation according to the administrative procedures for divorce registration provides prerequisite. "The provisions of article eighteenth second ordinances" marriage registration management, both for divorce, but in matters of custody of children, one party has difficulties in life economic help, property and debt treatment did not reach an agreement, the marriage registration organ shall not accept. Thus, the terms of divorce registration is indeed the two sides voluntary marriage registration office; two is the two sides of the children and property has the appropriate treatment. The author thinks, the establishment of second conditions is the result of the parties themselves, agreement is very easy to have the dispute, the provisions of the restrictive clauses have certain limitations, and child support, division of property in a divorce suit with isolated and alone suggested, the elimination of children and property has the appropriate treatment as the marriage registration office conditions, expand the application range of divorce registration provides a premise, is that men and women the voluntary divorce, after divorce registration organ for registration, to the marriage, cannot negotiate child support issues, such as division of property to the courts.

Sichuan are Yan fruit senior lawyers team formed by Yan fruit lawyer, lawyer Shen Hui, Yan Guo lawyer group has successively served as the legal consultant for a decoration engineering company, service companies, construction companies, property companies, property companies, a bank such as dozens of enterprises, has a very rich experience in enterprise management.

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