- 學位論文
論通常夫妻法定財產制--以夫妻剩餘財產差額分配請求權為中心
TO research the general couple legal assets system - focused on the right of the remaining assets of differences distribution
摘要
雖在目前社會法治風氣普遍人民對私法自治相關契約自由原則亦已相當熟悉之今日，惟在我國民情上對於婚姻關係存續中之夫妻財產制仍採取相對保守，在大多數之夫妻間未有特別之約定而依法適用通常法定夫妻財產制。既然是以一般普羅大眾共通適用則在立法制度設計時，勢必更加貼近社會一般通念之思維與觀念認知始可。我國夫妻財產制從民國19年制定時參考外國立法例引進聯合財產制為其架構並因當時之社會觀念仍以家父長制為主軸，以致妻之家事勞動付出與財產權並不受到重視；惟國民之法感情亦隨同社會風氣的變化，逐漸認同婦權及肯定在家庭貢獻上家事勞動並不亞於外出工作，如此也逐步反映在法制度設計的修正上。 因人類群居生活的特性，以致一般人難以離群索居，因此無論任何私法制度設計均無法排除與第三人間之關連性，故交易安全之保障成私法秩序中相當重要之一環。在通常法定夫妻財產制中，雖以夫妻間之財產透過權利義務歸屬達成其特定立法目的為其中心，但在相關制度設計時仍不可忽視對夫妻以外第三人之保障。遂我國夫妻財產制之架構即以『婚姻關係中夫妻地位平等』、『婚姻圓滿生活共同維持』及『交易安全保障』為三大主軸。 我國夫妻財產制順應時代與社會潮流，從家父長制忽視妻存在價值之聯合財產，逐步邁向夫妻平等各自享有獨立經濟以分別財產制為架構，再輔以透過肯定家事勞動之剩餘財產分配請求權而使雙方婚後財產具有一定程度關連性之制度設計。另因於民國91年制度大變革時適逢大陸地區之婚姻法肯認事實上婚姻保障台商於大陸地區之同居人，以致衝擊臺灣配偶之剩餘財產分配請求權，遂在制度設計上偏重了如何落實與保障剩餘財產分配請求權。但因法秩序的一體性，縱有應加重保障之權利仍不得完全忽視其他制度設計之原則。故本文先就夫妻財產制之演變及其修正背景予以概述，再以夫妻財產制設置三原則為探討藍本對現行夫妻財產制相關規定予以探討，再提出相關問題檢討是否有對部分原則過度偏廢；最後提出本文就相關問題之看法。
並列摘要
Although the general rule in the current social atmosphere of the people of the freedom of contract principle of private autonomy has been quite relevant familiar today, but our feelings on the marital relationship continues in the matrimonial property regime still take a relatively conservative among the majority of couples not particularly the agreement is generally applicable statutory matrimonial property regime law. As is common to apply the general public in the legislative system design, is bound to be closer to the community through the concept of general cognitive thinking and ideas before they can. Reference of marital property system in 19 years to develop from foreign legislation introduced their joint property system architecture and because of the prevailing social attitudes still patriarchal as the spindle, so that the wife of the family labor and property are not paying attention; except for nationals the law also accompanying feelings of social climate changes, come to identify with women's rights in the family and will certainly contribute to family labor and no less than to go to work, so gradually reflected in the amended law system design. Due to the characteristics of human social life, that is generally difficult to live apart, so regardless of any private law systems are designed not to exclude third parties connected with sex, so as to protect the security of transactions is very important in order to private one ring. In a typical statutory matrimonial property system, and although to property rights and obligations between husband and wife through specific legislation to achieve its purpose attributable to its center, but still in the related system design can not be ignored when the couple outside the protection of third parties. Then the structure of matrimonial property regime that is "marriage equality in marital status", "living together to maintain a successful marriage" and "transaction security" as the three main spindle. Of marital property system adapt to the times and social trends, from the patriarchal ignore the existence of the joint property of the value of the wife, the couple gradually move towards economic independence to enjoy their equal property regime was based, supplemented by request through the distribution of the remaining assets of certainty family labor leaving the matrimonial property rights of the parties connected with a certain degree of the system design. Another result coincides with the Marriage mainland regime when 2002.01.30 willing to recognize the fact of great change in marital cohabitation protect Taiwanese people in mainland China, the resulting distribution of the remaining assets of the impact of Taiwan's spouse claims, then the system design emphasis on how implementation and distribution of the remaining property protection claims. But the legal order of unity, even if we have the right to increase the security of the remains should not be completely ignored other principles of system design. Therefore, this article on the evolution of the first to be marital property system and its amendments outlined the background, then set the three principles of marital property system be explored to investigate modeled on the relevant provisions of the existing matrimonial property system, and then review the issues raised on the part of the principle of excessive neglected; Finally, this paper put forward the views of the relevant issues.