论夫妻离婚时“联合购买住房”的归属

On the Ownership of “Joint-purchased Housing” in Divorce Proceedings

当代西方发达国家或地区的法定夫妻财产制可以分为三个阵营:(1)所得共同制和一般共同制;(2)所得迟延共同制和一般迟延共同制;(3)所得调整制和一般调整制。依据所得共同制、所得迟延共同制、所得调整制,诉讼离婚时法院必须将夫妻财产划分为共同财产或"婚姻财产"和个人财产或"非婚姻财产"。夫妻联合购买住房即夫妻一方婚前购买并取得所有权、婚后以共同财产或婚姻财产清偿银行贷款的住房。各国成文法或判例法在离婚时对此确立的划分方法存在三种:(1)它被认定为夫妻一方的个人财产,但夫妻双方可以取得补偿请求权;(2)它被认定为部分为夫妻一方的个人财产、部分为夫妻双方的共同财产或婚姻财产;(3)它被认定为夫妻双方的婚姻财产。若以公平这一法律价值评价,第二种认定方法是最公平的。我国相关司法解释属于第二类立法。

Nowadays, the legalmatrimonialproperty regimes in western developed countries and regions can be divided into three camps： （1） a community property based on assets acquired during marriage and a total community of property; （2） adelayed community property based on assets acquired during marriage and a delayed comm unity of property; （3） an adjustmen t system based on assets acquired during marriage and an adjustment system of property. In accordance with the community property based on assets acquired during marriage, a delayed community property based on assets acquired during marriage and an adjustment systembased on assets acquired duringmarriage, the courtshould divide the couple＇s property into common property or ＂marital property＂ and personal property or ＂non- marital property＂ in divorce proceedings. The joint-purchased housing by a couple means thata spouse purchases and obtains the ownership of the housing before marriage and pays the bank loan with the couple＇s common property ormarital property afterm arriage. Three approaches fordetennining its ownership are adopted by statute law or case law in various countries： （1） It isdetennined as the personal property of a spouse, butboth spouses can petition the court for compensation; （2） It is partly recognized as the personal property of a spouse, partly as the couple＇s common property ormarital property; （3） It is determined as the marital property of both spouses. The second is considered the fairestapproach when evaluated from the perspective of equality. In addition, the relevant judicial interpretations in our country adopt the second approach mentioned before.