论婚姻专有性投资的法律保护——对中国离婚救济制度的完善

Legal Protection of Investment within Marriage:Improving the Chinese Divorce Relief System

婚姻当事人在信任他们能够持续共享生活的前提下,作出了许多专有于婚姻的贡献和牺牲。由于婚姻投资的专有性和不对称性,作出婚姻专有性投资的一方当事人往往在离婚时成为经济上易受侵害的一方,而中国现行《婚姻法》对婚姻专有性投资的保护明显不足,有损正义和公平。迄今为止,理论界提出的预期收益补偿理论和损害补偿理论虽有其合理性,但均因计算困难等固有缺陷而缺少可操作性,因此笔者提出一个更为现实和容易操作的补偿制度——离婚后均衡收入制度,为婚姻专有性投资的保护提供制度创新。

Marital parties are likely to make contributions and sacrifices to their marriage as they believe that they will live together.Such investment in marriage is often exclusive and unbalanced.The party that makes exclusive investment in the marriage often be-comes one that is disadvantaged at the time of divorce.However,the Marriage Law in China has not provided enough protection to the party that has made exclusive investment in marriages,undermining equity and justice.Though academics have proposed expected benefit compensation concept and damage compensation concept as remedies to the legal inadequacy,these proposals cannot be opera-tional partly because of the difficulties in calculation.The author thus proposes an alternative compensation system that is more practi-cal and easier to use,namely,system of income equilibrium at divorce,one that would provide protection to investment in marriages.