离婚财产分割制度的价值追求与立法完善

Value Pursuit and Legislative Perfection of Divorce Property Division System

相较于具有明显利己性的一般财产关系,婚姻财产关系表现出强烈的利他奉献性,婚姻财产法具有其本身的特质,不可等同于一般财产法。司法实践中法院对离婚财产的分割存在简单适用均等分割原则和简单将婚前购买婚后还贷的房产判归产权登记方的做法,这与我国婚姻法照顾弱者利益和兼顾两性平等价值理念不符,也不符合民法实质正义和人文关怀精神。离婚财产分割应以公平分割为原则,在未来的婚姻财产法通则性规定中应确立该原则,并以此原则指导离婚财产分割的立法完善和司法实践。

Compared with the general property relationship with obvious selfishness, the marriage property relationship shows a strong altruistic devotion. In judicial practice, there is a trend in the division of divorce property to simply apply equal division principle and to decide the real estate which is purchased before marriage by one part by loan and repaid housing loan after marriage belong to the registration party. It is not consistent with our marriage law which takes care of the interests of the weak and takes into account the values of equality between the sexes, nor is it in line with the substantive justice and humanistic care spirit of the civil law. The divorce property division should make fair division as the principle and it should be written into the provisions of the general rules of marriage and property law in the future, and take it as the guiding principle in legislative perfection and judicial practice of the divorce property division.