Experts Say The Judicial Interpretation Of Marriage Law (Three) Is Not Perfect.

The husband and wife are sold to third parties by the other party's unknowing situation. If the third persons are considered to be "good intentions", the other party will also lose the case if they sue for compensation. They can only claim for compensation when they are divorced.

From this reasoning, the other party of the property right of husband and wife has to bear the spiritual and economic losses and even take the litigation path for the living party and their own house because of the ultra vires act of one side.

Interlocutor Wu Xuehua, former deputy inspector of the Ministry of rights and interests of the all China Federation of women's Federation

Dialogue motivation

Recently, the people's Court of Fengtai District, Beijing tried a case. The plaintiff was a husband and wife.

Wu Xuehua, former deputy inspector of the all China Federation of women's rights and interests, said that the judicial interpretation of marriage law (three) eleventh provisions should be made.

Reporter: the judicial interpretation of matrimonial law (three) has been implemented since August 13th this year, which provides operational evidence for the people's court to try out disputes in marriage and family at the present stage, protect personal property from infringement in marriage and family disputes, and also opens up a precedent for promoting and promoting separate economic independence between husband and wife in the judicial system.

What do you think of this?

Wu Xuehua: compared with the provisions of our constitution and relevant legal systems, I dare not agree with the eleventh provision of the judicial interpretation of marriage law (three).

It is inconsistent with the Constitution's stipulations and purposes for the protection of citizens' private property and housing, and it may lead to the spread and escalation of property infringement between husband and wife.

The judicial interpretation of matrimonial law (three) eleventh stipulates: "if one party agrees to sell the common housing shared by the husband and wife without the other party's consent, the third party shall purchase in good faith, pay reasonable consideration and go through the registration of property rights, and the other party claims to recover the house, and the people's court shall not support it."

That is to say, if the husband and wife side sell the houses shared by both parties to the third party without knowing the other party, if the third party's purchase behavior has 3 conditions, the people's court does not support the proposal of the other party to recover the house.

Reporter: it is invalid legal behavior to sell the husband and wife common housing without obtaining the consent of the other party, but for the people who buy a house, it is generally possible to trade with the husband and wife only. It may be "unaware" whether the husband and wife are willing to disagree. What do you think?

Wu Xuehua: there is a lack of credibility of third people who are interested in "ignorance", and the theoretical basis for the recognition of "good faith purchase" is legitimate.

The seventeenth rule of marriage law in China stipulates that...

Husband and wife have equal rights to deal with common property. "

In dealing with the family's major property, in accordance with the law, in accordance with the principle and from the sentiment, no matter where it is, neither party has the right to dispose of it without obtaining the consent of the other party.

The husband and wife sell the common property without obtaining the consent of the other party. The motive is to illegally occupy the property of the other party, and it is knowingly to share the property rights on the other side subjectively, and the infringement is also intentional.

Objectively, the sale of husband and wife common housing to third people, whose behavior is in essence "concealing illegal purposes in legal form", and has completed the legal sense of infringement of the rights of the other party.

According to the principle of law which is consistent with the principle of subjectivity and objectivity, this act constitutes a violation of private property on the other side of the common property right, and it is also an injure and contempt for the independent legal status, personality and dignity of the other party.

The fifty-sixth contract law of our country stipulates, "invalid contract...

It is not legally binding from the beginning.

As we all know, the registration of property rights of husband and wife shared housing in China is customary under the name of a party.

Prior to this, the law also recognized and protected this kind of folk custom, and it also protected all kinds of legislation and judicial activities.

The above facts prove that when third people buy a couple's house (without showing the other party's consent or without proof of property rights), it is hard to convince people that they are "ignorant".

It is even more impossible for a person who is interested in the property to prove himself to be "informed" if the party requests the property owner to recover the house, unless he or she really does not want to buy the house or the true sense of conscience.

At this point, the objectivity, authenticity and reliability of his (unknowable) evidence are unbelievable and the evidence power is also missing.

It can be seen that this kind of "goodwill" is usually achieved only when the spouses are malicious, the assignee responds positively and the two sides cooperate tacitly.

According to this, I believe that between selling the house and third people is a "good faith purchase" or malicious collusion, which is an important issue worth discussing in judicial practice.

Reporter: it is understood that the judicial interpretation of marriage law (three) eleventh stipulates that when seeking advice, all sectors of society have greater disputes over "bona fide purchase".

However, this provision is still included in the judicial interpretation. The reason is mainly that "the property law has incorporated the real estate into the bona fide acquisition system".

Wu Xuehua: actually, it is not quite so. The eighty-third provision of our legislative law stipulates: "...

Where special provisions are inconsistent with the general provisions, special provisions shall apply. "

Marriage law is a special law to adjust the relationship between marriage and family. According to this principle, marriage law can be applied to the principle of property law.

Statistics show that before the introduction of this regulation, some experts suggested that if the couple had only one housing, and one party did not consent to sell the housing, which could damage the legitimate rights and interests of the other party, the housing should be allowed to recover.

But the proposal has not been accepted because the housing situation is more complicated: if a house is a luxury house, it can buy a small house after sale. In this case, the people's court does not support the idea of housing recovery; if the house is the only small house, there will be no place to live after the sale, and the court can support the idea of recovering housing when the specific execution of the decision is made.

According to this statement, the husband and wife are sold to third parties on the other side's unknownly, if the third parties are considered to be "bona fide purchase", the other party will also lose a lawsuit and claim compensation only when they are divorced.

From this reasoning, the other party of the property right of husband and wife has to bear the spiritual and economic losses and even take the litigation path to the housing they live in and their own houses because of the ultra vires act of one side, so the state has to invest more judicial resources.

Regarding the protection of the rights and interests of the third party in the "bona fide purchase", I suggest that we should focus on the system protection in the prevention link.

In fact, the rules and regulations for the protection of husband and wife shared housing are gradually being established and perfected in China. For example, if we want to produce a marriage certificate, pfer the registration of husband and wife together, we must agree to each other. These are the "posts" and "checkpoints" for the infringement of the husband and wife. As long as we establish and improve these rules and regulations strictly, the overwhelming majority of the problems can be solved in the bud. On the other hand, we should distinguish the different situations of the judicial interpretation of the marriage law (three) before and after the promulgation, and increase the burden of proof for the sellers and the third party in good faith purchase.

For example, before the introduction of the judicial interpretation of marriage law (three), when a married party sells a house, it must issue a certificate of authorization from the other party or a property right to the sale house. If the third person purchased does not have such evidence, the "bona fide purchase" will not be established.

In this way, we can effectively prevent the spread of the abuse of "bona fide purchase". Even if there are very few false "good intentions", the victims can quickly find evidence which is not consistent with the facts and malicious collusion. Once again, as the last bottom line of justice and fairness, when a couple has only one suite to be sold, we should try our best to do the work of "third party work" in good faith purchase, and safeguard the legitimate rights and interests of the owners of the common property rights of the housing, so as to ensure the safety of family property and ensure fairness, justice and social stability.