论夫妻一方个人财产在婚后所生孳息的归属

Ownership of the Fruits from One Spouse’s Personal Property during Marriage

协力(贡献)理论和物权法规则与我国夫妻财产制度的立法理念和法律规范相悖,无法解决婚后孳息归属问题。协力(贡献)理论无法解释为何我国婚后所得包括非劳动所得,同时具体规则的设计出现偏差,《婚姻法解释三》征求意见稿只注意到贡献的有无,忽略多寡的区别,也没有明确贡献的判断标准,忽略部分孳息凝聚的贡献。物权法的孳息从原物规则忽略婚姻财产关系的特性以及部分孳息明确属于共同财产。《民法典》第1062条的理论基础是婚姻命运共同体理论,解释上婚后孳息应归属共同财产。

The theory of cooperation (contribution) and the rules of property law are contrary to the legislative ideas and legal norms of marital property system in China, and cannot solve the problem of the ownership of fruits during marriage. The theory of cooperation (contribution) cannot explain why the income during marriage in China includes non-labor income, and at the same time, the design of specific rules is biased. Interpretation (III)of Marriage Law only pays attention to the presence or absence of contribution, ignores the difference about how much one maycontribute, and has no clear criteria for judging the contribution, ignoring the contribution in some fruits. Property law ignores the characteristics of marital property relationship and some fruits clearly belong to common property. The theoretical basis of Article 1062 of the Civil Code is the community theory of marriage destiny, which explains that fruits after marriage should belong to common property.