The Classification Between the Property Aquired Before Marriage and the Property Aquired in Marriage When Equally Distributed upon Dissolution of the Statuary Marital Property Regime---Learning from American Community Property System

• Main Authors: KO, CHENG-YEN, 柯政延
• Other Authors: HSU, HUI-YI
• Format: Others
• Language: zh-TW
• Published: 2011
• Online Access: http://ndltd.ncl.edu.tw/handle/78753277499484620233

碩士 === 國立臺北大學 === 法律學系一般生組 === 99 === Although the amendment of the marital property system in 2002 in our country is according to the Swiss law, it is still different from the separation of property regime. Property relationships between husband and wife are not irrelevant. For example, Article 1018-1 provides that husband and wife may contract a certain amount of money paid by one for the other's free disposition; Article 1022 provides that either husband or wife under mutual obligation has the duty to inform each other of his or her property acquired during marriage; Article 1030-1 provides the right to claim distribution of matrimonial property as well as the scope of it, and Article 1020-1 provides the security measures. Moreover, Article 1018-1 discloses that, " the universal rules of relationship between husband and wife is toward the theory of parternship”. Therefore, this article focuses on the issues of the theory of community property states, its equal partnership, and the division of marital property upon divorce, especially how to identify separate property and community property. Based on the results above, to identify the classification between the property acquired before marriage, and the property acquired in marriage in ROC is the second purpose of this article. As to property acquired in marriage , this article focuses on whether a "special property" should be included in the distribution of community property on U.S law, including long-term nature of assets (such as pension, insurance) , the invisible human assets (professional degree , license and goodwill), and the unknown nature of compensation (compensation for personal injury), etc. This article try to find some property which the couple have co-contribution to incorporate into the property acquired in marriage, and protect the lower, more vulnerable party, and provide a new guideline in the distribution of marital property upon divorce. As to property acquired before marriage, it is often times impossible to prove the remainder assets due to the fact that the husband and wife have been in a long-term marriage. According to the Article 1017 which stipulating all property shall be presumed as the property acquired in marriage, it will lead the remainder to become property acquired in marriage. In order to reduce the undue influence and preserve the nature as property acquired before marriage , this article introduces the tracing theory that derived from source doctrine on U.S. law , which is the derivative of “family expense doctrine”, ”community-out-first doctrine” and “the total recapitulation tracing method”.