【作者】 张培；

【导师】 石先钰；

【作者基本信息】 华中师范大学 ， 民商法学， 2008， 硕士

【摘要】 别居制度源于古罗马时期《十二铜表法》的规定,到了中世纪的欧洲,寺院法盛行一时,它对世俗事务特别是婚姻家庭生活的干预,使得寺院法所采取的禁止离婚的救济措施——别居也随之确立并被广泛适用。随着宗教改革中婚姻还俗运动的发展、罗马法的复兴以及罗马法中婚姻家庭立法原则、规则及立法技术的日趋缜密,资本主义的婚姻家庭立法有了现实和法律借鉴,也使得资产阶级的法学家们赋予了别居制度以新的法律涵义。我国从古到今奉行许可离婚主义,在封建时代实行的是离婚过错原则,即“七出”、“三不去”。建国后在离婚制度中适用无过错原则,即以夫妻感情确已破裂为准予离婚的标准,而关于别居的规定则只在1989年最高人民法院《关于人民法院审理离婚案件如何认定夫妻感情确已破裂的若干具体意见》第7条和婚姻法修正案第三十二条第三款第四项中有所涉及,但是对于别居的事实认定、别居期间配偶权的行使、子女抚养及夫妻财产等问题的相关规定还未相应地制定和完善。尤其是别居制度中夫妻财产关系的确立,它涉及到别居期间子女的抚养问题、亲权的认定问题、监护权问题、收养及人工生殖子女问题,双方父母的赡养问题,夫妻双方的扶养权和继承权等问题。本文即对别居期间的夫妻财产关系问题做了系统的研究。文章分为绪言和三个部分,绪言提出了对我国别居期间夫妻财产关系问题进行研究的重要性。第一部分是对研究别居期间夫妻财产关系的必要性和现实基础进行阐述。该部分首先分析了别居制度的源起和发展,在此基础上,探讨了我国研究别居期间夫妻财产关系的必要性,并从我国研究别居期间夫妻财产关系的现实条件和这一阶段的夫妻财产关系的独特地位出发,对我国目前对于该问题的处理方式进行分析,认为我国目前的做法不利于实现男女平等,也不利于当事人利益的保护。第二部分是对一些国家关于别居期间夫妻财产关系法律的典型规定和典型做法进行比较分析。通过分析各国的相关规定,可以发现各国在自身国情的基础上,做出了各有特色的规定,这也与各国法律中别居与离婚的关系有关,但是,在各有特色的别居期间夫妻财产关系问题的规定中,又可以发现一些相通的地方,即涉及的问题方面大同小异,基本涉及包括夫妻财产制的变化、夫妻间的相互扶养关系、子女的抚养、别居期间夫妻债务的承担等等。通过比较分析,笔者认为,针对我国的立法来说,应当在借鉴各国先进理论的基础上,结合我国的特点,在处理别居期间的夫妻财产关系问题上,走一条自己的路。第三部分则详细探讨了我国别居期间夫妻财产关系的原则以及涉及完善的若干个问题。《婚姻法》虽然属于民法范畴,可适用民法的一些基本原则,但由于婚姻家庭法具有一定的身份性,民法的有些原理并不适用,如等价有偿原则,有些婚姻家庭中的财产问题民法又无法涉及到,因此有必要对别居期间夫妻财产关系做出一般性原则的分析。在分析了一般原则的基础上,本文还对与之相关的若干具体财产关系问题进行了详细探讨,以期能使我国在别居期间夫妻财产关系问题的处理上能更加合理有效,从而实现对当事人利益的真正保护。这些问题处理的好,有利于推进我国婚姻家庭制度的民主化、法治化进程,有利于实现我国婚姻法规定的婚姻自由原则,有利于完善我国拟订的民法典的框架,有利于将我国的婚姻家庭法与世界先进的婚姻家庭法律制度并轨,解决国际私法中婚姻家庭规范的冲突,有利于解决港澳台区际婚姻家庭立法与大陆婚姻家庭法的冲突,有利于和平解决离婚纠纷,有利于保护婚姻各方当事人的合法权益,有利于保护第三人的合法权益。别居制度中夫妻财产关系问题的确立,是我国婚姻家庭立法向世界先进立法例迈进的标志,是我国离婚制度走向文明的标志。更多还原

【Abstract】 The separation system was from the Roman period "of 12 copper table". By the Middle Ages in Europe, the prevailing law at the temple, especially its secular matters of marriage and family life interventions, with the spread of doctrine, make the separation which Temple Law adopted be established and widely applicable. With modern principles of freedom of marriage, divorce in particular the principle of freedom of Absurdity. Religious reform movement in the marriage Hansu the development of Roman law and Roman law in the rejuvenation of marriage and family legislative principles, rules and legislative technology increasingly careful to capitalism marriage and family legislation provides a practical and legal reference, making bourgeois jurists who has given the separation system to the new legal meaning. China since ancient times pursue licensing divorce, and in feudal times fault divorce is the implementation of the principle that "7" and "three do not." After the founding of the divorce system in the application of the principle of no-fault, that is, the feelings of husband and wife have indeed broken the standards for granting a divorce, 1950 and 1980 two of the Marriage Law did not provide for the separation, except the Supreme People’s Court "on the People’s Court found the couple a divorce case how emotional it has broken a number of specific views,"in 1989 and Article 32 of the Marriage Law amendments to Article 4, paragraph 3 states. the fact that the separation, separation during the exercise of the right spouse, child custody and marital property issues such as the relevant provisions have not yet developed and accordingly Perfect. In particular, the separation system is the property of the husband and wife relationship established, it involves the separation of children during the custody issue, the recognition of parental authority, the issue of guardianship, adoption and artificial reproductive problems their children, both parents of maintenance problems, the spouses of dependency And the right to inheritance rights and other issues, which deal with the good and is conducive to promoting China’s marriage and family system of democratization.This thesis consists of introduction and three parts. The introduction rising the importance of study on the separation of property between husband and wife .The first part is to research the separation of property between husband and wife during the need for elaborate and realistic basis. The first part of the separation system of the origins and development on this basis, China’s research on the separation of property between husband and wife during the necessity, and separation from our study couples during the property relations and the reality of conditions at this stage The relationship between husband and wife property of the unique position of our country is the method of handling the problem analysis that China’s current practice is not conducive to the realization of equality between men and women, is not conducive to the protection of the interests of the parties.The second part is for some countries on the separation of property between husband and wife during a typical legal provisions and a comparative analysis of typical practice. Through analysis of the relevant provisions of countries, can be found in countries on the basis of their own national conditions and characteristics have made the provisions of this law with the separation and divorce on the relationship, however, have the characteristics of the separation period Marital property relations in the provisions, but also found that some of the same places, that is, the issues involved in very much the same, basic involved, including matrimonial property system changes, the mutual dependency between husband and wife relationship, the child’s upbringing, the separation during the couple’s debt Commitment, and so on. Through comparative analysis, I believe that, in view of the legislation, should learn from advanced countries on the basis of theory, combining the characteristics of our country, in dealing with the separation of property between husband and wife during the question and follow a road of their own.The third part will examine in detail the separation of property between husband and wife during the principles of sound and a number of issues. "Marriage Law" Although the scope of the Civil Code, Civil Code applicable to some of the basic principles, but because of marriage and family members have a certain status, some of the principles of civil law does not apply, such as the principle of equivalence paid, some marriage and family property in the Civil Law Can not be involved, there is a need for the separation of property between husband and wife made during the general principles of analysis. Analysis of the general principles on the basis of this paper is also associated with a number of specific property relations carried out a detailed study with a view to enable China to the separation of property between husband and wife during the treatment can be more rationally and effectively, thus realizing the parties The protection of the interests of the real.A good deal with these issues is conducive to promoting China’s marriage and family system of democratization, the rule of law process, conducive to the realization of China’s principle of freedom of marriage under the Marriage Law is conducive to improving China’s development of the framework of the Civil Code, is conducive to China’s Marriage and Family Law and the world’s most advanced legal system of marriage and family merged the settlement of international private law regulating marriage and family in the conflict, to solve the Taiwan Regional Council and the mainland of marriage and family law marriage and family conflicts, divorce is conducive to the peaceful settlement of disputes is conducive to the protection of marriage The legitimate rights and interests of the parties is conducive to the protection of the legitimate rights and interests of a third person. The separation system of property relations between husband and wife in the establishment of China’s marriage and family legislation to the legislation of the world’s advanced into the symbol of China’s divorce is a sign system to civilization.更多还原