摘要
针对因父母为子女婚后购房出资作为夫妻共有财产而可能产生的利益失衡问题,司法实务中主要有“出资不明视为借贷”“无赠与双方意思视为确定归一方”以及“出资不明为共有但离婚时酌情考虑出资”等变通解决路径。多种路径可以解决个案利益失衡问题,但也导致了此类纠纷法律定性和法律适用的混乱状态。比较而言,“视为借贷”与出资行为的真实意思不符;“无赠与双方意思视为确定归一方”与立法本意存在偏差。现行法下更为合理的解决路径应是:在遵循“未指明一方即归于共有”规则的前提下,引入“公平分割”理念,在离婚财产分割时考虑财产来源以保护出资方的利益。
In order to adjust the unfairness when the funding provided by parents for their married children to purchase houses is identified as community property,"regarding the funding as debt when parents'declaration of will is ambiguous","presuming the funding as a gift only to one spouse when parents don't announce that the funding is gifted to both spouses",and"presuming the funding as community property while considering the resources of property in division of the community property when the spouses divorce"are currently used in judicial exercises.Multiple solutions can be applied to solve the unbalance in cases,but the variety of solutions also attributes to the ambiguity of identification and law application."Presuming the funding as debt"is contradictory to the true will of parents;"presuming the funding as a gift only to one spouse when parents don't announce that the funding is gifted to both spouses"misunderstands the core of legislation.Provided that parents'funding shall become community property of the spouses unless being specified to belong to only one spouse,taking the resources of community property into consideration when spouses divorce and dividing the community property under the"fair division theory"would be a more appropriate solution to this problem.
作者
许莉
金钰婧
XU Li;JIN Yujing
出处
《中华女子学院学报》
2024年第3期34-42,共9页
Journal of China Women＇s University
关键词
父母出资纠纷
意思表示
法定财产制
公平分割理念
cases caused by parents providing funding
declaration of will
legal marital property regime
fair division theory
