诉讼离婚财产清算中妇女财产权益法律保护实证研究——以我国重庆市某基层人民法院2011—2013年审结的离婚案件为对象

Empirical Research on Protecting the Women' s Property Rights and Interests in the Marital Property Liquidation in Divorce——Based on the sampling survey on the divorce cases(2011—2013)tried by a local People' s Court of Chongqing city

通过调研发现,被调研法院在司法实践中贯彻男女平等原则进行离婚财产清算,减轻女方清偿夫妻共同债务责任,维护离婚妇女财产权取得成效。但司法实践中也存在某些问题,法院判决夫妻共同财产分割时较少适用照顾女方权益原则,在共同财产分割中女方获得的财产数量少,女方放弃嫁妆或其他个人财产数量较多,法官认定夫妻共同债务适用标准有差异,部分法官对离婚协议内容实质审查不充分,部分法官缺乏社会性别意识等情况。在对现行立法与司法检视的基础上,提出如下对策建议:明确适用照顾女方原则的司法意见,确立婚前个人财产婚后自然损耗补偿制度,设立夫妻日常家事代理制度解决夫妻共同债务认定的困境,增设法院家事调解顾问,加强法官社会性别意识专门培训等,从实体与程序上建立维护离婚妇女财产权益的法律保障体系。

The paper summarizes the achievements achieved by the court on protecting the divorced women＇s property rights. The court applies the equality principle between man and woman in divorce cases involving the marital property liquidation, and reduces the women＇s liability for the debts incurred jointly by the husband and the wife during their married life. However, limits are also discovered during the investigation on protecting divorced women property rights in following aspects： 1st, it is rare in fact for the count to take the woment rights and interests into coincident in the judgment of property division; 2rd, the cases that the female party gave up dowry and other personal properties take up a large proportion ;3rd, divergences exist among different judges in legal provision or judicial interpretation concerning the joint debts in divorces cases ; 4th , a few judges fails to carry out a substantial review of the divorce agreement; 5th , some judges are lack of certain gender consciousness. On the basis of perfecting present laws and judicial interpretation, the paper puts forward following five suggestions in relevance to above limits： 1st, consideration factors of applying the wife-friendly principle should be added into the judicial interpretation; 2nd , the compensation system should be established that the owner of premarital personal properties should be compensated, in the cases of personal property suffering loss if co-used by the couple; 3rd, in the Marriage Law, the couple daily agent system should be perfected, convenient for the court to judge the responsibilities of the couple＇s joint debts; 4th, the position of family mediation counselors should be set up in the court; 5th, judges should be urged to have more social gender awareness.