Housing rights on the priority of marriage and family protection

"Marriage Law of the Judicial Interpretation (c" 1,2 clause 12 provides: "a pArty registered in the name of the husband and wife jointly owned the house, without the consent of the other pArty to sell the house, the third person in good faith purchase, pay a reasonable to register on the price and the other advocates the recovery of the housing, the people's court shall not support, but the house belongs to the family housing needs to live, except. "" spouse unauthorized disposition of the common cause of all the other losses of housing, divorce When the other pArty the right to request compensation for damages. "concern is that the last sentence of paragraph 1 of this section requirement" but the house belonged to the family housing needs to live together, except "(hereinafter referred to as" but the book "provides that the 2010 5 21 Supreme Court Civil trial held in Beijing the first "Supreme People's Court on the Application <<People's Republic of Marriage>> Interpretation of Several Issues (c (draft experts will", in accordance with the recommendations of the author added, and its purpose is to "give priority to housing rights of marriage and family legal protection." However, there was revised "draft" in the subsequent process of soliciting the views of the depArtments concerned, this "proviso" provided by the authorities questioned some comrades. In their view, this "proviso" provisions of <<Property Law "> The Innocent is a conflict, it is recommended that the Supreme remove this requirement. However, I believe that this question, and delete The proposal is the lack of scientific and rational basis. In this, I still maintain that priority should be given the right to marriage and family housing, protected by Law, this "but the book" provides the legal basis is realistic and in line with our basic national conditions, is scientific and reasonable. Here, the author of legal and social foundations from both the aspects should be retained "judicial interpretation of the Marriage Law (three" draft Article 12, paragraph 1, "but the book" provides the main reason.

First, give priority to protection of marriage and family, the legal basis of housing rights
From a legal perspective, the right to give priority to protection of marriage and family housing has the following legal basis.

(A priority to protect the housing rights of marriage and family <<Constitution>> basis
According to China <<Constitution>> related to the protection of human rights, marriage and family spirit of the provisions of protection by the state, marriage and family housing a priority should be protected by Law. Priority is the protection of marriage and family housing priority to the protection of basic human rights. Marriage and the family is the cell marriage and family is the basic unit of human life, marriage and family the right to housing is closely related with people's right to exist, the rights of the legal protection of marriage and family relations to the young and old, the vital interests of millions of households. China <<Constitution>> Article 33 3, provides: "The State respects and protects human rights." Article 49, paragraph 1, states: "Marriage, family, mothers and children protected by the state." marriage and family housing is the most basic conditions of human survival, it is the people live life, shelter, located at the place the night sleep. [1] It is in this sense, the priority is the protection of marriage and family housing priority to the protection of basic human rights. Thus, "judicial interpretation of the Marriage Law (three" draft article 12, paragraph 1 paragraph in the "but the book" provides that the applicable <<Property Law "> Innocent special restrictions. because the law give priority to protection of marriage and family housing, is to ensure the survival of marriage and the family members of the most basic conditions." judicial interpretation of the Marriage Law ( three "draft but in the form of priority to protection of marriage and family are special provisions for the right to housing, in line with our <<Constitution>> the" state respects and protects human rights "provision, helps make our <<Constitution>> required" marriage, family, mothers and children protected by the state, "State responsibility carried out, in line with our fundamental interests of the masses, demonstrated the new era of 21st Century Government serving the people's livelihood, the basic concept of justice for the people .

(B priority right to protection of marriage and family housing <<Marriage Law>> basis
First of all, From "<Marriage Law>> and <<Property Law"> the adjustment object, nature and function of view, they are different: (1) from the adjusted targets, our current <<Marriage>> Article 1: " Law is the basic norms of marriage and family relations. "ie <<Marriage>> marriage and family relations in order to adjust the object, and our <<Property Law"> Article 2: "Because the ownership and use of Civil relations arising, this Law shall apply. "ie <<Property Law"> on the property adjustment object. (2) nature view, marriage and family relations as family relations shall be based, so <<Marriage Law>> is as law, because of the attribution and use the resulting Civil relationships shall be the property-based, so <<Property Law "> is property law. (3) From the functional perspective, the Civil Law as private law is the right method," <Marriage Law>> and <<Property Law "> as the Civil law components also belong to the right method. However, "<Marriage Law>> mainly to protect marriage and family rights of the parties for the purpose," <Property Law "> mainly to protect the civil relations of the parties property rights for the purpose." In modern society, marriage family remains the foundation of society, marriage and family are still charged with the functions of old-age child-care, the stability of marriage and family relations marriage not only the interests of the parties and their children, but also involves social stability and development. Precisely because marriage and family have on individuals and society the importance of marriage in order to consolidate and maintain the community, protect the family's survival and development of modern society, marriage and family law to protect marriage and family for the purpose of legislation. "[2] Thus, marriage and family relations based on the object of this special adjustment necessary for the protection of marriage and family marriage and family residence of the parties, "<Marriage Law>> can, and should have with the <<Property Law"> different special regulations to achieve the protection of marriage and family, women, children and the elderly the purpose of legitimate rights and interests .

Secondly, from the sources of law perspective, the adjustment of judicial interpretation of marriage and family relations, marriage is one of the sources. For the protection of marriage and family parties to the basic conditions for survival, "judicial interpretation of the Marriage Law (three" Clause 12 provides protection of marriage and family priorities the right to housing is a legitimate and reasonable.

Again, looking from the Application of law in the field of marriage and family, "<Marriage Law>> is a special law," <Property Law "> a common law, the former should take precedence over the latter is applicable. Therefore, the" judicial interpretation of the Marriage Law (III "clause 12 marriage and family housing on the right of priority protection provisions, should take precedence over <<Property Law "> The system was acquired in good faith apply.

(C transferee in good faith of the parties under the ownership of property <<Property Law "> protection is conditional, priority should be given the right to marriage and family housing, protected by law
First, the good things of the transfer or ownership of the parties is "conditional" to be protected by law. According to our <<Property Law "> Innocent provisions, the parties acquired in good faith transferee the ownership of property protected by law. However, this law protection is "conditional" because, legal protection of individual property rights "is not absolute." [3] of <<Property Law "> Section 106 provides:" No right to dispose of real or personal property will be transferred to the assignee , the owner is entitled to recover, unless otherwise specified, the following circumstances, the assignee shall acquire ownership of the property or movable property: (a transferee when the transferee of the immovable or movable property is well-intentioned, (b to reasonable price of the transfer, (c title to real property or movable property shall be registered in accordance with the law have been registered, no registration have been delivered to the transferee. assignee made in the preceding paragraph ownership of real or movable property, the original owner No person shall be entitled to dispose of the request for damages. parties other property rights acquired in good faith, and with reference to the preceding two paragraphs. "bona fide acquisition of legislation aimed at maintaining the safety of transactions. I think that, in accordance with our <<Property Law"> 106 the provisions of the parties in good faith transferee ownership of property protected by law is "conditional", and whether the conditions for acquisition in good faith, should be from the "legal situation" and "legal limit" to examine two aspects: (1) must comply "legal case." transferee of the immovable or movable property that must be met <<Property Law "> explicitly enumerated in Article 106 of the three legal cases. (2) must be no" legal limit. "transferee of the immovable or movable property that is not there is "otherwise provided by law" exception. only two aspects of the conditions are fulfilled in order to constitute Good. and "except otherwise provided by law," which is actually the need for some special priority to the protection of legal rights the legal basis to stay. That is, not merely constitute a bona fide acquisition of "also comply with the <<Property Law"> explicitly enumerated in Article 106 of the three statutory circumstances "as the basis for determining that the parties in good faith transferee of title to property is "conditional" to legally protected.

Second, the values ​​from the legislative perspective, priority should be given the right to marriage and family housing, protected by law. Marriage and the family home and goodwill of the parties the right to ownership of property where the transferee should give priority to protection by law? Indeed, marriage and family and goodwill of the parties the right to housing transferee ownership of property are all protected by law as property rights. However, the legal protection of the rights to the two purposes are different. the legal protection of marriage and family housing, marriage and family in order to protect the party has room to home, in order to maintain family members basic survival needs, the legal protection of bona fide property of the transferee ownership of the parties is to maintain security of transactions, in order to protect the normal development of social economy. from the survival and development of the relationship between the right to see, right to life should take precedence over the right to development. Because only the first person to exist, and can be further developed. As mentioned earlier, marriage and family is the basic unit of human life, marriage and family the right to housing is closely related with people's right to exist. give priority to protection of marriage and family housing, is give priority to the protection of basic human rights. Therefore, in the Legislative value orientation, should give priority to protecting the housing rights of marriage and family marriage and family parties which the basic rights of survival. So, for the matrimonial house without one of the spouses is the validity of transfer, " judicial interpretation of the Marriage Law (three "Clause 12 provides that:" a party registered in the name of the husband and wife jointly owned the house, without the consent of the other party to sell the house, the third person in good faith purchase, pay a reasonable price and registration of, the other party claims the recovery of the housing, the people's court shall not support, but the house belongs to the family housing needs to live, except. "I believe that the protection of Article 12 of the preferential right to marriage and family housing," but the book "rule does not violation of <<Property Law "> 106 Innocent spirit. It embodies <<Property Law"> on the goodwill of the parties to grant a conditional ownership of property protection to safeguard the security of transactions, but also reflects the country <<Constitution >> "The State respects and protects human rights", "marriage, family, mothers and children protected by the state," the spirit and the <<Marriage>> priority to protection of marriage and family, to ensure the achievement of the intention of the family functions. This is legitimate, but also scientific and reasonable.

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According to United Nations human rights protection, the spirit advocated by the literature, family and children should be legally protected .1948 priority on <"World Declaration of Human Rights>> declared:" In view of all members of the human family is the inherent dignity and equal and inalienable recognition of the right, is a world of freedom, justice and peace. "Article 16 of the Declaration:" ... ... The family is the natural and fundamental group unit of society and should be protected by society and the state. "[4] 1924 <"Children Declaration on the Rights>> The principle of two states:" Children deserve special protection ... ... development of law, the best interests of the child shall be the paramount consideration. "1989 <" Children Convention on the Rights>> declared in the preamble "Children are entitled to special care and assistance, Convinced that the family as the basic unit of society, as all members of the family, especially children's growth and well-being of the natural environment should be given the necessary protection and assistance to fully assume its social responsibility. "visible, relevant literature on the United Nations human rights protection are consistent advocate of families and children a priority should be protected by law. Therefore, the" Marriage Law of the judicial interpretation of (c, "the draft rights to marriage and family housing, special conservation priorities" But the book "provides, in line with the United Nations human rights protection advocate the spirit of the relevant literature.

Second, give priority to protecting the right to marriage and family housing, social infrastructure
Social reality from our perspective of life, from the 21st century, with rapid economic development of our society, our rapid growth in the income of urban and rural residents, housing conditions improved. The housing market-oriented reforms have made their own houses of urban residents rate significantly increase homeownership in 2008 owned 87.8%, compared with 1983 increased 78.4 percentage points. [5] China is still a developing country, give priority to protection of marriage and the family has the following social basis of housing rights.

First, marriage and family housing is the vast majority of people in our society the basic place to live. At present, China's social economic development and adapt their material and cultural living standards have greatly improved people's lifestyles are increasingly diverse of. but clothing, food, shelter, is still the vast majority of our four basic needs of people, and marriage and family housing is still the vast majority of people in our society the basic place to live. Therefore, the priority is to protect the housing rights of marriage and family priority to protect the vast majority of our people's basic needs.

Second, marriage and family housing, the vast majority of our family generally has a housing. At present, the reasons for the price of housing, the vast majority of urban residents are taking the family to purchase the family home mortgage loans, the general family economic capacity can only buy a family home. Therefore, the right to give priority to protection of marriage and family housing is the priority to protect the vast majority of our family only the basic living conditions, to avoid marriage and the family members into a room to live without difficulties.

Third, give priority to protection of marriage and family housing will help meet the family members of women, children and the elderly and other vulnerable groups living needs. At present, families are still charged with the functions of old-age child-care, marriage and family housing is to achieve the functions of old-age child-care The basic premises. If we do not give priority to marriage and family, protection of housing rights, will lead to marriage and the family members including women, children and the elderly and other vulnerable groups of displaced, unable to achieve the functions of the family pension nursery. Therefore, the right to give priority to protection of marriage and family housing, there is help protect the families to achieve the functions of old-age child-care will help meet the family members of women, children and the elderly and other vulnerable groups, basic needs.

Third, the conclusion
Based on the above legal and social basis of two reasons, the author believes that "judicial interpretation of the Marriage Law (three" draft article 12 the right to give priority to marriage and family housing, legal protection, "but the book" the provisions are consistent with our <<Constitution> "and" <Marriage Law>> relevant countries to respect and protect human rights, the provisions of protection of marriage and family spirit, not contrary to our <<Property Law "> spirit of good access to the system, and consistent with the protection of United Nations human rights advocated by the spirit of the relevant literature, in line with Current status and functions of marriage and family housing, basic national conditions. Therefore, "but the book" The query and delete the proposed requirement is the absence of a scientific and rational basis. this "but the book" provides a scientific, reasonable, and should be adhered to reservations.





Notes:
[1] See Cheng Shang Yuan: <<tenure security and housing security legislation of the start - On <Housing Security Act "in the drafting of the many difficult problems >>,<< Law Research"> 2010 4.

[2] Chen Wei: <"China Marriage and Family Law Legislation Research">, the masses Press, 2010 edition, p. 13 ~ 14.

[3] Du Wanhua: <<Property Law Issues in the Application> ", in a ponderosa editor: <<civil trial guide and Reference">, Law Press, 2008 edition, p. 64.

[4] <"World Declaration of Human Rights>>, http://www.un.org/chinese/work/rights/rights. Htm, 2010 年 11 月 2-day visit.

[5] See National Bureau of Statistics: <<urban and rural residents moving from poverty to the overall well>>, http://www. Stats.gov.cn/tjfx/ztfx/qzxzgcl60zn/t20090910-402585849.htm, 2010 年 12 月2 visit.

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