论夫妻财产权的平等保护——对婚姻法司法解释的社会性别分析

Equal Protection of the Property Rights of the Husband and the Wife: Gender Analysis of the Judicial Interpretations of the Marriage Law of China

夫妻财产权的平等保护是婚姻法中的一项重要原则。婚姻法司法解释按照财产权的规则对夫妻财产和个人财产进行界分,实行平均分割和同等保护,以指导和解决司法适用中出现的新问题。然而,从社会性别的视角看,司法解释的这一中立立场,同样忽略了女性在家庭和社会现实生活中的不利处境和地位,并不能有效保护处于弱势的女性财产权益。因此,司法实践中不能孤立简单地适用司法解释,而要回归到婚姻法确立的相关原则中,在夫妻财产权的司法保护上走向实质平等和公正。

The equal protection of the property fights of the husband and the wife is a main principle in marriage law. According to the principle of property rights, the judicial interpretations of the Marriage Law distinguish the property shared by the husband and the wife from personal property rights, giving equal division and protection to the former, in order to guide the resolution of emerging issues in the application of the Law. However, from a gender perspective, this paper argues that the above judicial interpretations, which appear to hold a gender-neutral standing, have actually overlooked women＇s disadvantaged position in the family and society, one that has pre- vented women from protecting their property rights effectively. Therefore, the judges should not rule simply based on the above judicial interpretations. They should observe the relative principles and regulations of the Marriage Law, and uphold justice and equity to pro- vide the needed protection to women in actual judicial deliveries.