Analysis on the division of husband and wife’s common property in divorce cases

拆分盤One, according to the case case that studies one: cheng male and gu female 1997 marriage, 1998 bear daughter cheng jia. Cheng male and gu female divorce through litigation in 2006, the two sides dispute on the woman’s wage income. Gu female unit proves its monthly income is 750 yuan, cheng male thinks proof is false, checked through social insurance fund management center endowment insurance of gu female every month pay cost salary base is 2200 yuan. The court finally adopted the social security fund management center’s inquiry proof, and decided to divide the property of both parties. Case two: zhang owed 130,000 yuan for raw materials to a company, which was confirmed by the effective judgment of the court. When the judge impounded the property in zhang’s home, zhang’s wife took out the civil mediation document of the people’s court, claiming that all the property in the home belonged to the woman and her children. Case 3: pei mou and wang mou marry before, pei mou registered a company lawfully. Registered capital of 2.1 million yuan, pei contributed 950,000 yuan, as the company’s legal representative. After getting married, wang assumed all the housework and took care of her mother-in-law. Five years later, wang filed for divorce and asked for 50 percent of the value of pei’s shares. Pei agreed to the divorce, but the plaintiff put forward the husband and wife’s joint property division plan has an objection. After evaluation, the lawsuit, pei as chairman of 交易所the company’s assets have been nearly 40 million yuan. From the perspective of trial practice, the problems are mainly manifested in the following aspects: 1. Property of husband and wife is limited with property acquisition time, can differentiate for belongings before marriage and belongings after marriage. In real life, husband and wife often have no property records when they get married, and once the relationship between husband and wife deteriorates after marriage, there is often a dispute over the ownership of property. 2. Disputes over concealment and transfer of the couple’s common property. The husband and wife one party conceals the property or conceals the income, even in the marriage normal situation also often occurs, the so-called “private money” existence, from a certain extent shows that conceals the income or the property situation is not the individual. When the court hears divorce dispute, one party or both parties make false statements in court in order to share as much as possible of the husband and wife’s common property by hiding, transferring, destroying or providing false evidence. This kind of phenomenon is common in party one party does not understand very to other party income circumstance or the divorce dispute that is engaged in production, management sex activity. 3. Disputes over operating income, equity, creditor’s rights and intellectual property rights. Taking equity as an example, when a party has a share, if the prospect of比特大陸 the share is promising, both parties often strive to claim that one party owns the share and pay compensation to the other party. If the opposite is the case, both parties often claim compensation and the equity is owned by the other party. On the other hand, if the shares come from a partnership or limited company, the division of the couple’s common property actually involves the will and interests of other shareholders. According to the current law and the provisions of judicial interpretation, the following principles should be followed when determining the joint property of husband and wife: first, the principle of priority of agreement. Freedom of contract is the basic principle of property law and also the spirit that should be further embodied in perfecting matrimonial property system. The agreed property system is the concrete embodiment of this spirit. When dividing the joint property of husband and wife, we should first respect the autonomy of the parties’ will, which is also an important embodiment of the principle of disposition of the parties in the procedural law. The judge only needs to be in the middle of the judgment when there is a dispute about the parties’ division of the common property. However, the division of joint property between husband and wife should be voluntary, good-faith and legal, without circumvention of the law, violation of the mandatory provisions of the law and infringement of the interests of the third party. Otherwise,盈幣寶-什麼是差價合約槓桿 the convention is invalid. The above case two is a typical use of fake divorce to escape the debt of the case. Involved in the case of zhang mou and his wife in the divorce case to divide the common property agreement, transfer property, so as to achieve the illegal purpose of avoiding debt. Such cases have been on the rise in recent years. Debtors tend to put all the property owned by the other party or children, and assume all the debts themselves, resulting in a passive situation of no property available for execution, causing serious damage to the legitimate rights and interests of creditors. False divorce, true escape, not only harmed the legitimate interests of creditors, and greatly destroyed the seriousness and justice of the law, great harm. Second, the principle of average segmentation. In our country, common common basic form has two kinds, namely husband and wife common property and family common property. In the common common, each common person equally enjoys the right, undertakes the obligation. The proceeds from the common property are not apportioned proportionately but Shared. Based on the equal rights and obligations of husband and wife to the joint property, the husband and wife should divide the property equally, that is, half of each person. This is also an important embodiment of the principle of equality between men and women in the marriage law. Third, take care of the no-fault party principle. Fault liability is a general and universa盈幣寶Web及手機H5合約地址l principle in the field of civil law. Similarly, in the field of marriage and family, we cannot ignore the fault without giving the fault party any warning and punishment. Therefore, when dividing the joint property of husband and wife, marital fault should also be related to the division of the property of husband and wife. In divorce cases, the fault of the parties is investigated and taken as a basic principle of dividing the joint property of husband and wife. Fourth, the principle of protecting the legitimate rights and interests of women, children and the elderly. In the society, compared with adult men, women, children and the elderly are in the weak position, so it is necessary for the society to emphasize the protection of their rights and interests, to comply with the trend of The Times to protect the interests of the vulnerable groups. The division of the husband and wife’s common property in the divorce case and the solution of the problems Such income tends to be expressed in cash as well as in deposits, and is relatively certain in amount, so that the division of these common assets is emphasized in an equal manner. Case one reflects how the court faces the problem of false income proof of common property. In real life the salary that divorce one party issues, salary, bonus income proof, because it is the proof that the unit issues for oneself employee, be in order to safeguard the element such as interest of this unit worker, false income proof 盈幣寶Bingbon-全球官方交流群正式上線may appear. Therefore, looked from the reality, if the other party thinks that the certificate may be wrong, by investigating the other side of the Labour department or personnel department, or query the other party to pay housing accumulation fund, social insurance, individual income tax case against, the parties really difficult to obtain evidence, can apply for a court to obtain evidence, according to the power so as to make the divorce the dispute of wages and salaries, bonuses, etc as fair as possible money income, is advantageous to the division of court of justice the couple’s joint property. 2. Equity segmentation. How to divide the equity jointly owned by husband and wife when the marriage relationship terminates? Case three reflects this problem. Our country “marriage law” to whether stock right belongs to husband and wife common property did not make direct regulation. However, according to the spirit of the relevant provisions of the act, it can be determined that the appreciation of the pre-marital property during the period of their marriage should belong to the property jointly owned by the husband and wife. No matter from the legislation example of each country, still be the marriage law of our country looks, general to husband and wife property is made commonly for the principle, namely all marital property of husband and wife, no matter be chattel or immovable property all belong to husband and wife jointly all, with agreement individual all i差價合約交易-盈幣寶bingbons auxiliary. But judicial opinion is divided on whether a share in a limited liability company can be jointly owned by a husband and wife. According to the principle of company law, after a shareholder contributes capital to a company, his property right of capital contribution is converted into equity, and the shareholder becomes a member of the company. Equity is transferable and has exchange value. Therefore, equity, like other property acquired during the existence of the relationship between husband and wife, can become one of the property jointly owned by husband and wife. In 2001, the revised “marriage law” although not explicitly put equity listed as one of the husband and wife jointly owned property, but the production and management of “income”, “other property that shall be owned by common” list for husband and wife jointly owned property, presumption can be included to equity (2) the limited liability company investment and enjoy. The author believes that for a limited liability company, the equity is only enjoyed by the shareholders who contribute capital to the company, while the equity between husband and wife should be jointly negotiated and exercised by both parties, belonging to the property rights and interests jointly owned by both parties. In addition, one of the husband and wife invested in a limited liability company with his or her personal property before marriage, and the part of the equity increment belongs to the property jointly own【盈幣寶】手續費優惠公告ed by the husband and wife, which conforms to the fair principle of the civil law and is conducive to protecting the legitimate rights and interests of both parties. Because enjoy equity, will participate in the company’s business activities as a shareholder, exercise the right, assume the obligation, will pay a certain amount of labor, the equity appreciation part reflects the results of such labor. The fruits of labor during the existence of the marriage relationship, though not directly obtained through the participation of the other party, are inseparable from other labor and should be Shared by both husband and wife. If only one of the husband and wife is the shareholder of the company, how to divide the joint property system of husband and wife is not clearly specified in Chinese law. The author thinks, can consult shareholder to the third party outside shareholder transfers contributive regulation processing. (1) one shareholder of husband and wife shall explain to other shareholders the situation that the equity shall be divided, and all shareholders shall vote on the condition that more than half of the shareholders agree to the split. The shareholders who do not agree to the split shall purchase the equity that is to be divided to the non-shareholder of husband and wife. If they do not buy the equity, they shall be deemed to have agreed to the split. (2) if all shareholders vote to agree on the division, other shareholders shall have the preemptive riBingbon盈幣寶v1.7.1版本升級公告ght for the equity that shall be divided to the non-shareholder of husband and wife under the same conditions. (3) according to the results of shareholder voting and whether other shareholders exercise the preemptive right, the non-shareholder of husband and wife shall either acquire the equity and become the shareholder of the limited liability company, or obtain the exchange value of the equity that should be Shared. 3. Division of other property. For other property division, is generally in accordance with the above division principles to carry out. If there is a dispute between the two parties about whether the property is pre-marital property or post-marital property, from the perspective of court hearing, it is mainly determined according to the evidence provided by both parties. If the evidence is unclear or unable to determine whether the property purchased before or after marriage, it should be presumed that the property is the common property after marriage. Of course, when handling the divorce cases of the common property division, there will be a variety of other problems, such as transfer, concealment, private division of property, colluding with the third party to infringe the legitimate rights and interests of the other party, fictitious creditor’s rights and debts, false proof or witness testimony. When hearing such cases, the court should see clearly the essence of the issue, grasp the essence of the dispute and correctly balance the interests 最簡攻略:五分鐘學會使用-盈幣寶Bingbonof both parties.


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