China Women's Daily reported in all media.
Recently, Fangshan District Court in Beijing concluded a divorce housework compensation case by applying the new provisions of the Civil Code, which triggered a heated discussion in society. Wang, a full-time wife, took on most housework during her marriage, and demanded compensation for housework in divorce proceedings. In the end, the court ruled that she divorced her husband, and at the same time decided to pay 50 thousand yuan for Wang's housework compensation. It is understood that Wang has filed an appeal.
Please ask Mr. Zhan, director of the Marriage and Family Law Committee of Shantou Lawyers Association, to talk about the compensation for housework in the new provisions of the Civil Code.
Lawyer Zhan:
First, the historical evolution of the "housework compensation system"-the activated "sleep clause"
200 1 Article 40 of the Marriage Law stipulates the reward system for housework, that is, "If the husband and wife agree in writing that the property acquired during the marriage relationship shall be owned by each other, and one party has to pay more obligations for raising children, caring for the elderly and assisting the other party to work, it has the right to demand compensation from the other party at the time of divorce, and the other party shall pay compensation". According to the above regulations, the following conditions must be met to get the remuneration for housework: First, the husband and wife agree in writing on their respective property systems; Second, one of the husband and wife bears more family obligations; Third, you must file for divorce before you can ask for a divorce.
Because it is not common for husband and wife to agree on their own property system, and the applicable scenes are rare, it is called "sleeping clause" and "beauty on the shelf", and related cases are rare.
Second, the provisions of the Civil Code.
Article 1088 of the Civil Code stipulates that "if one spouse undertakes more obligations such as raising children, caring for the elderly and assisting the other spouse to work, he has the right to request compensation from the other spouse at the time of divorce, and the other spouse shall give compensation. Specific measures shall be agreed by both parties; If the agreement fails, it shall be decided by the people's court. "
Article 1088 of the Civil Code further recognizes the value of housework. On the basis of Article 40 of the Marriage Law, it is amended to cancel the stipulation that the economic compensation for divorce is only applicable to the agreed property system, and expand the scope of economic compensation to the legal property system and the agreed property system. Specific compensation methods have been added, stipulating that "the two parties reach an agreement, and if the agreement fails, the people's court will make a judgment", and the two parties will decide through consultation first, and the principle of autonomy of will will will be implemented in the private field.
Thirdly, the understanding and application of marriage and family in the Supreme People's Court Civil Code is analyzed.
(1) The value of housework should be respected, and the party who undertakes more family obligations should be given financial compensation for divorce.
First of all, housework is the obligation of both husband and wife in the family. It must be admitted that because of the heavy family obligations, one party has greatly reduced the time and energy devoted to self-development and self-realization, and even completely sacrificed the opportunity of self-development to devote himself to housework. When a husband and wife divorce, the one who undertakes more family obligations and provides more intangible support to the other party will face the dilemma that the rights and interests cannot be guaranteed because of weak or insufficient economic ability, which is obviously unfair.
Around the world, the value of housework has also been recognized by many countries. The Swiss Civil Code stipulates that when assisting the other spouse to engage in a certain career or experience, if one spouse's contribution obviously exceeds his contribution to raising the family, he has the right to ask for reasonable compensation. According to the German Civil Code, in the case that one party to a divorced marriage cannot look forward to employment because of caring for or educating children, and in this case, that party can ask the other party for living expenses.
(two) to apply for financial compensation for divorce must meet certain conditions.
1. All types of marital property ownership are applicable.
2. Asking for economic compensation is based on taking on more family obligations.
Article 1088 of the Civil Code lists the cases of raising children, caring for the elderly and assisting the other party in their work. The party who undertakes more obligations may propose economic compensation. Of course, the application of financial compensation for divorce is not limited to the above three aspects, and the obligations for family interests should also be included, mainly for housework. Housework refers to unpaid housework such as preparing food, cleaning living environment, sorting clothes and shopping for the final consumption of oneself and family members, as well as unpaid care and help activities for family members and people outside the family. These family affairs are all over life, but they cannot be directly measured by market value. According to the principle of consistency of rights and obligations, the party who undertakes more obligations should be properly compensated.
(three) the economic compensation needs to be put forward by one party, and the court does not take the initiative to apply it.
The people's court shall not make a judgment on economic compensation unless requested by the parties concerned. However, the court may explain to the parties their claim for economic compensation, and it is up to the parties to decide whether to exercise it.
(4) The request for economic compensation must be made at the time of divorce.
The purpose is to make up for the loss of self-development opportunities caused by one party paying more self-development opportunities for the family formed by both parties in marriage life. Such losses are often reflected after divorce and leaving her family where she has paid a lot. It is of little significance to make compensation in marriage.
Moderator: Is the amount of economic compensation for divorce 50,000 yuan reasonable?
Lawyer Zhan analyzed:
First of all, combined with the survey data to analyze this problem:
How to quantify the burden of family obligations and how to calculate the value of housework. Different research data show that the potential value of housework is conservatively estimated at about 30% of GDP (Liao Yuhang: Estimation of the Value of Housework, statistics and decision, No.8, 20 18). If the housework is converted into a fixed salary, it will be 42 billion yuan per year (compiled by the National Bureau of Statistics: Statistical Abstract of China (1995)). Page 34), and the research takes a city in Hangzhou as a sample, and it is concluded that the economic value of housework in Hangzhou accounts for about 12.23% of the regional GDP in that year, which is equivalent to 46.47% of the per capita consumption expenditure in Hangzhou and 23. 1 1% of the added value of the tertiary industry. If we compare unpaid housework with paid labor in the market,
It can be seen that housework, which is not obvious in social and economic operation, has a low sense of existence and no salary, and its economic value cannot be ignored, which is of great significance to social reproduction. However, until today, there is no authoritative quantitative calculation method to confirm the specific value of housework.
Moderator: How much is the reward for housework? What aspects need to be considered?
Lawyer Zhan:
The compensation is to pay a lot of losses for work within the marriage and family, lose the opportunity to develop and choose in society, and lose the ability to earn income in society. This opportunity is of course priceless, and it is difficult to put a clear price on it in the secular world. However, as a standard of legal system and judicial practice, we must make a comprehensive investigation and try our best to match the amount of economic compensation with the value of labor and output paid by the heavier party. In addition to considering the time to do housework, the energy invested in housework and the benefits of housework. However, it should be pointed out that the trust interests of the party with more obligations should also be considered. In marriage, the party who undertakes more family obligations pays more attention to housework because of its trust in the marriage prospect, which brings about the compression of its own development space and invisibly pays the opportunity cost of personal work choice and income ability. Therefore, the tangible property interests, intangible property interests and expected property interests obtained by the other party.
Such as education, employment prospects, professional qualifications, professional titles, intellectual property rights, etc. What one party obtains during the marriage shall be included in the calculation of economic compensation.
Moderator:
The previous data also said that "it is conservatively estimated that the potential value of housework accounts for about 30% of GDP. If the unpaid housework is compared with the paid labor in the market, the value of housework is equivalent to 43.23% of the total annual salary of employed people in Hangzhou, then it is difficult to see the matching degree of the 50,000 yuan housework compensation awarded by the Beijing court.
Lawyer Zhan:
As one of the three major relief systems for divorce (Articles 1088, 1090, 109 1 of the Civil Code), domestic compensation, divorce economic compensation and divorce damage compensation are stipulated respectively. ), its main function is to give relief and balance to the rights of the spouse with more family obligations on the basis of the division of marital property. The determination of economic compensation is based on the determination of the division of husband and wife's property, and the compensation should be extracted from the personal property or joint property of the party who bears the obligation to pay. You can't deduct the economic compensation before the husband and wife divide the same property, and then divide the remaining * * * with the property.
Specific to this case in Beijing, because this case is still under appeal, but according to the statistics of relevant data, the compensation for housework by the court over the years is about1-50,000 yuan. Personally, I think the court should determine the amount of compensation according to the actual economic situation of both husband and wife and the division of property at the time of divorce.
Moderator: Please ask Mr. Zhan to make a final summary and share his views.
First, compensation is not compensation. The value of housework is not measured by the compensation amount of 50,000 yuan. The data shows that the value of housework accounted for at least 30% of gdp a few years ago. So 50 thousand yuan is compensation, not compensation. If 50 thousand yuan is used to price the value of 16 housework, it should be said that it is a deliberate distortion and malicious depreciation of the value of housework.
The court's decision on compensation for housework is a gesture that the judicial organs respect the existence value of housework.
Second, the principle of autonomy of will rationalizes the amount of compensation. According to Article 1088 of the General Principles of Civil Law, the payment of compensation is first "negotiation between the two parties", that is, the autonomy of the parties takes precedence over private affairs, and the agreement reached through negotiation is legally binding on both parties. Only when the two parties fail to reach an agreement on economic compensation through consultation can the court make a judgment according to the actual situation of the case. In civil law, the principle of "autonomy of will" is always the highest bright spot. Under the advocacy of legal and judicial cases, men and women can actually conclude a "compensation agreement for housework" before marriage, during marriage and at divorce. Among the existing cases, there are cases of peer statistics, and 53 cases of housework compensation supported by the court, with a minimum of 5,000 yuan and a maximum of 400,000 yuan, which is not a big gap. Of the 53 cases, 3 were awarded compensation of 200,000 yuan, 300,000 yuan and 400,000 yuan respectively, because the husband and wife agreed on such a high amount of compensation in the divorce agreement, and the court found that the agreement was true, effective and legal, so the other party was sentenced to pay housework compensation according to the divorce agreement.
The judicial organ will feel low when determining the compensation for housework or any compensation payment standard. There is a reason for this. Justice is an advocacy behavior, and the economic level varies across the country. However, it cannot be determined by the judiciary that the remuneration for housework in the north, Guangzhou and Shenzhen should be hundreds of thousands, while the remuneration for housework in mountainous areas and economically underdeveloped areas should be several thousand yuan. It is reasonable to price the reward of housework in this way, but it is also very inappropriate and will convey a misleading and misleading value.
For example, in practice, the amount of mental damage compensation for personal injury is also calculated between 50 million and 50 thousand yuan in Shantou, and the maximum compensation amount is only 50 thousand yuan, but a person's life is not priced at this figure. If both parties can reach an agreement through consultation, the amount of compensation for mental damage will not be too high even if it is 500,000 yuan or 1 10,000 yuan.
Therefore, whether individuals are handling cases or writing articles in the field of family affairs, I strongly advocate that since they belong to the field of private law, they can make full use of the principles of autonomy of will and good faith to make reasonable agreements and actually perform them. We should learn to protect ourselves and fight for our legitimate rights and interests. What if you say the two sides can't reach an agreement? Then, my suggestion is that when you decide to be a full-time wife or husband, or before both husband and wife make this decision, you can draw up a reasonable "housework compensation agreement" acceptable to both sides.