物文主义的夫妻不动产权属条款——评《婚姻法司法解释(三)征求意见稿》第11条之规定

Property Law-oriented Provisions about Ownership of Couples’ Real Property——Comment on Provisions of Clause 11 in Opinion Soliciting Draft of Judicial Interpretation of Marriage Law (Three)

最高人民法院公布的《关于适用〈中华人民共和国婚姻法〉若干问题的解释(三)》(征求意见稿)第11条的"夫妻不动产分割条款"体现了物权与人权的利益之争,从其本质而言是一种在物文主义思想滥觞下所做出的财产恒重、兼顾人权式立法,是一种"本末倒置"结构的立法:它将财产法的平等对待混同于人法的差别对待,并过多强调立法技术而导致与现实脱节.相关部门应以保护人权为核心重构该条款,以便与《婚姻法》的宏观立法精神相吻合.

＂Provisions of division of couples＇ real property＂ of Clause 11 in Judicial Interpretation on Issues of Applying Marriage Law of the People＇s Republic of China （Three） （Opinion Soliciting Draft） announced by the Supreme People＇s Court of the People＇s Republic of China reflects the interest conflict between real rights and human rights. Essentially speaking, it is a kind of legislation originating from property law-oriented theory which puts property rights in the first place and takes human rights into consideration at the same time. It is also a kind of legislation whose structure is to stress the incidental over the fundamental. It confuses equal treatment in property law with differential treatment in human rights law and emphasizes technology of legislation too much to meet reality. Relevant departments should reconstruct the clause with human rights protection as its core so as to make it be consistent with the macro legislative spirit of Marriage Law.