The Ownership of the Property Purchased by the Contribution after Parents' Divorce from the Perspective of the Separation between the Capital Contribution Ownership and Property Right Ownership
The Ownership of the Property Purchased by the Contribution after Parents' Divorce from the Perspective of the Separation between the Capital Contribution Ownership and Property Right Ownership
YU Chengyuan
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Published
2023-09-25
Issue Date
2023-10-10
Abstract
When the husband and wife get divorced, the parents' capital contribution should not directly determine the ownership of the property purchased by the contribution. The ownership of capital contribution and the ownership of housing property rights are two different legal issues, which should be judged separately. In this process, the rules of Article 1062 and Article 1063 of the Civil Code should be applied repeatedly, without resorting to the rules similar to Article 7 of the previous Judicial Interpretation of the Marriage Law (Ⅲ) to identify the ownership of housing property rights. The judgment of the ownership of capital contribution should be based on the interpretation of the intention and the legal property system of the husband and wife. When the parties' agreement is unclear, the act of capital contribution is a gift rather than a loan, because the repayment obligation of the children cannot be explained from the behavior of the parties. When determining the attribution of the gift, the time when the gift occurred is the key factor in the judgment: if the gift was made before the marriage of the husband and wife, it is a gift to the natural children of the donor, and it belongs to the personal property of the husband and wife; if made after the marriage of the husband and wife, it is a gift to both husband and wife, and belongs to the joint property of the husband and wife. However, it should be noted that the above rules are only preliminary rules of presumption applied when the true meaning of the expression of intention cannot be ascertained. When there are other elements worth considering, the interpreter should investigate the true meaning of the expression of intention by integrating all the elements. On the issue of the attribution of housing property rights, the binary structure of “capital” and “property” has brought about a fundamental change in the perspective of observation: The court does not need to directly examine the issue of “whether the house purchased by the parents is the common property of the husband and wife or the personal property of one of the spouses”, but will solve the issue of the ownership of the capital contribution at the level of the interpretation of the intention, and in the issue of the ownership of the house property, only need to consider “whether the house purchased by the husband and wife before or after the marriage is the common property of the husband and wife or the personal property of the husband and wife”. The solution of the latter is no longer directly related to the meaning of parents, but purely belongs to the legal property system of marriage.
YU Chengyuan.
The Ownership of the Property Purchased by the Contribution after Parents' Divorce from the Perspective of the Separation between the Capital Contribution Ownership and Property Right Ownership. Jinan Journal. 2023, 45(9): 29-41 https://doi.org/10.11778/j.jnxb.20230595