泾渭分明:婚姻财产的内外归属方案与内外效应

Entirely Different:The Internal and External Ownership Schemes and Effects of Marital Property

夫妻共同所有区别于共同共有,内外归属方案区分婚姻维度与物权维度两种归属状态,前者无法被简化为债权债务关系,在夫妻身份内部以及婚姻关系外部产生法律效应。夫妻法定财产制、约定财产制以及特别财产约定在婚姻维度直接发生归属效力,是否发生物权变动仅遵循物权公示原则,离婚财产分割或给予协议同理。夫妻一方单独处分共同财产是否构成无权处分,只须从物权维度认定,无权处分时通过表见代理而非善意取得补足处分权限,无偿或低价的无权处分通过恶意串通、离婚损害赔偿、离婚财产分割、案外人执行异议以及类推适用债权人撤销权等手段救济。夫妻共同所有的股权的客体是股权权属而非股东权利,夫妻内部转让股权时,股东资格的移转需要遵循公司法的实质和形式要求,持股方对外无偿或低价转让共有股权超出默示授权范围时,配偶可主张成立无权代理。

The shared ownership of spouses is different from the co-ownership system in the sense of Chinese law.The internal and external ownership schemes of marital property distinguish between the marital dimension and the property right dimension.Internal schemes cannot be defined as legal relation of obligation,and have legal effects both within the marital identity and outside the marital relationship.The legal property system,agreed property system,and special property agreement of spouses have direct ownership effect in the dimension of marriage.Whether there is a change in the meaning of property rights needs to follow the principle of property rights disclosure,and the same applies to the division or agreement of divorce property.Whether the separate disposal of common property by one spouse constitutes unauthorized disposal only depends on the determination of the property rights relationship.When there is no right to dispose,it is necessary to obtain supplementary disposal authority through apparent agency rather than in good faith.Free or low-priced unauthorized disposal can be remedied through means such as malicious collusion,divorce damages compensation,divorce property division,objection to execution by non-parties,and the application of creditor revocation rights.Free or low-priced unauthorized disposal can be remedied through means such as malicious collusion,divorce damages compensation,divorce property division,objection to execution by nonparties,and the application of creditor revocation rights.The object of jointly owned equity by spouses is equity ownership rather than shareholder rights.When transferring equity within spouses,the transfer of shareholder qualifications needs to comply with the substantive and formal requirements of the Company Law.When the shareholder transfers the shared equity to the public for free or at a low price beyond the scope of implied authorization,the spouse of the shareholder may claim to establish an unauthorized agency.