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离婚纠纷中处理公房争议应予注意的几个问题

作者:admin  日期:2019-03-12 09:35  人气:
公有住房问题是我国计划经济时代的特殊产物。随着城镇住房制度改革全面推进和不断深入,原先的承租人以象征性低廉租金为对价的福利分房制度已被货币工资分配制度代替,居民只能通过租赁、购买的方式取得住房的使用权或所有权。国务院《关于深化城镇住房制度改革的决定》等有关政策规定,福利性政策房屋的出售实行三种价格政策:一是向高收入职工家庭出售公有住房实行市场价,住户完全取得房屋的所有权;二是向中低收入职工家庭出售公有住房实行成本价,住户虽取得房屋所有权,但上市交易受限制;三是实行标准价售房,住户取得房屋的部分产权。公有住房产权逐渐明晰的同时,也呈现出产权人多元化、价值商品化、社会化。当前,离婚诉讼中涉及公房居住问题日益增多,当事人争夺公房租赁使用权或所有权矛盾突出,而我国城镇居民住房改革属政策调整范畴,法律上的空白以及观念上的误区,不仅影响了法院裁判的统一性,也给当事人造成不必要的讼累。本文拟就司法实践中较为棘手的相关实务展开探讨。
 
The problem of public housing is a special product of the planned economy era in China. With the comprehensive advancement and deepening of urban housing system reform, the original renter's welfare housing system, which is symbolically low rent, has been replaced by the monetary wage distribution system. Residents can only obtain the right to use or ownership of housing by leasing and purchasing. The State Council's "Decision on Deepening the Reform of Urban Housing System" and other relevant policies stipulate that the sale of welfare-oriented housing implements three price policies: one is to sell public housing to high-income workers'families at market price, and the households fully acquire the ownership of the housing; the other is to sell public housing to low-income workers' families at cost price, although the households acquire the ownership of the housing. However, the listing transactions are limited; third, the implementation of standard price housing sales, households to acquire part of the property rights of the house. While the property right of public housing is becoming clearer, it also shows the diversification of property owners, commercialization of value and socialization. Nowadays, there are more and more problems concerning public housing in divorce proceedings, and the contradiction between the parties competing for the right to lease or ownership of public housing is prominent. However, the reform of urban housing in China belongs to the scope of policy adjustment. The blankness in law and the misunderstanding in concept not only affect the uniformity of court decisions, but also cause unnecessary litigation burden to the parties. This article intends to discuss the more thorny related practices in judicial practice.
 
在离婚诉讼中,当事人的感情确已破裂、调解无效的应判准离婚,同时,离婚诉讼属复合之诉,子女抚养、夫妻共同财产分割作为从诉应一并作出处理,则必然涉及到夫妻共同居住的有关公房承租使用权或所有权分割问题。有观点主张,根据现行的法律、法规和有关政策,经济适用房、房改房和集资房的上市交易受国家政策调整,其间涉及到土地出让金、居住年限等因素而不能自由交易,由此产生的民事纠纷法院不予受理,而且审判实务中一惯坚持婚姻案件排斥第三人参与诉讼的原则,公房问题涉及房管单位利益和国家税收征缴,因此对公房的租赁使用权或所有权不作处理。事实上,最高人民法院于1996年即下发了《关于审理离婚案件中公房使用、承租若干问题的解答》,该司法解释明确规定:在离婚案件中,当事人对公房的使用、承租问题发生争议,自行协商不成,或者经当事人双方单位或有关部门调解不成的,人民法院应根据案件的具体情况,依法予以妥善处理。同时,最高人民法院《关于适用<中华人民共和国婚姻法>若干问题的解释(二)》第二十条调整的范围明确界定为取得所有权的房屋,当然包括以市场价、成本价购买的公有住房。对于部分产权房,该司法解释第二十一条规定:人民法院不宜判决房屋所有权的归属,应当根据实际情况判决由当事人使用。可见,两件司法解释不仅肯定了法院应当对公房的租赁使用权和所有权争议予以审判,而且规定了具体分割的基本原则。因此,离婚案件中公房归属权争议法院不得拒绝审判。
 
In divorce proceedings, divorce should be allowed if the feelings of the parties have indeed broken down and the mediation is ineffective. At the same time, divorce proceedings belong to a compound lawsuit. If the children's upbringing and the division of the common property of the husband and wife are dealt with together as a subsidiary lawsuit, it will inevitably involve the issue of the right to rent and use or the division of ownership of public housing where the husband and wife live together. It is argued that, according to the current laws, regulations and relevant policies, the listing and trading of affordable housing, housing reform and fund-raising housing are regulated by the state policy, which involves factors such as land transfer fee, length of residence and so on, and can not be freely traded. The resulting civil disputes are not accepted by the courts, and the principle of excluding third parties from litigation in marital cases is always adhered to in judicial practice. Then, the public housing problem involves the interests of the housing management unit and the state tax collection, so the lease right or ownership of public housing is not dealt with. In fact, the Supreme People's Court issued the Answer to Several Questions Concerning the Use and Rent of Public Housing in the Trial of Divorce Cases in 1996. The judicial interpretation clearly stipulates that in divorce cases, if the parties have disputes over the use and rent of public housing, they cannot negotiate on their own or mediate by the parties'units or relevant departments, the People's Court shall act according to the case. The specific situation shall be properly handled according to law. At the same time, Article 20 of the Supreme People's Court's Interpretation on the Application of the Marriage Law of the People's Republic of China (II) clearly defines the scope of the adjustment as the ownership of housing, including, of course, public housing purchased at market and cost prices. Article 21 of the judicial interpretation stipulates that the people's court is not suitable to decide the ownership of the house ownership, and should decide that the house ownership should be used by the parties according to the actual situation. It can be seen that the two judicial interpretations not only affirm that the court should try the disputes over the lease right and ownership of public housing, but also stipulate the basic principle of specific division. Therefore, in divorce cases, the court for disputes over the ownership of public housing may not refuse to adjudicate.
 
 
 
根据上述两件司法解释,当公房判归一方租赁使用或所有的情况下,该方当事人应给予另一方当事人“相应的”、“适当的”经济补偿,至于如何相应、适当及计算标准,未作明细。由于公有住房的出售,在很大程度上享受国家政策优惠,除以市场价购得公房外,住户能以低廉的对价取得房屋所有权,当市场交易条件成就后,将与商品房的地位一样,具有现实的必然的预期利益。因此,对已取得所有权的公房,其市场价格应成为补偿款的基数无疑。但由当事人共同租赁使用的公房的补偿则不然,一方取得公房租赁使用权后,不仅不能必然获得所有权,而且还需支付租金。因此,对另一方的补偿只能是对丧失居住使用权的补偿。商品的使用价值虽无定数,但可通过商品交换以货币形式衡量,故而公房的使用价值亦可通过公房商品化后的市场价格衡量。当住户根据国家的优惠政策以一定的价格获得公房所有权后,房屋即可成为上市交易的商品,具有了市场价格。该商品的市场价格实际包含了原先公房居住使用时的使用价值和购买售后公房产权资金。而国家对如何购买售后公房产权的资金计算有具体明确的规定,并逐年更新,其与公房市场价格之差,可作为公房使用权价值确定的依据,从而得出一个合理的补偿金额。至于住户以标准价购买的部分产权房,当年当地政府所公布的公房标准价即为分割公房使用权的经济补偿依据,当事人日后取得公房完全所有权后有争议的,可另行诉讼。
 
According to the above two judicial explanations, when public housing is leased or used by one party, the party concerned shall give the other party "corresponding" and "appropriate" economic compensation, but no details are given on how to make corresponding, appropriate and calculation criteria. Because the sale of public housing, to a large extent, enjoy preferential national policies. Apart from the purchase of public housing at market prices, households can acquire the ownership of housing at a low price. When the market transaction conditions are achieved, they will have the same status as commercial housing, with realistic and inevitable expected benefits. Therefore, the market price of public housing that has acquired ownership should undoubtedly be the base of compensation. However, the compensation for public housing leased by the parties is not the same. After one party acquires the right to use public housing lease, not only can it not necessarily acquire ownership, but also it has to pay rent. Therefore, the compensation for the other party can only be the compensation for the loss of the right to use residence. Although the use value of commodities is uncertain, it can be measured in monetary form through commodity exchange, so the use value of public housing can also be measured by the market price after the commercialization of public housing. When the household obtains the ownership of public housing at a certain price according to the preferential policies of the state, the house can become a commodity on the market and has the market price. The market price of the commodity actually includes the use value of the original public housing for residential use and the funds for purchasing after-sale public housing rights. However, the state has specific and clear provisions on how to calculate the funds for purchasing the after-sale public housing rights, which are updated year by year. The difference between the price of public housing and the market price of public housing can be used as the basis for determining the value of the right to use public housing, and thus a reasonable amount of compensation can be obtained. As for the part of the property right house purchased by the household at the standard price, the standard price of the public housing published by the local government in that year is the basis of economic compensation for the division of the right to use the public housing. If the parties dispute after they acquire the full ownership of the public housing in the future, they may take another action.
 
 
 
根据当事人意思自治原则和婚姻案件的特殊性,法律倡导夫妻双方对共同财产协议分割,公房的市场价格除专业部分评估外,应本着节约、简便的原则,引导当事人协商确定。司法实践
 
According to the principle of party autonomy and the particularity of marriage cases, the law advocates the division of common property agreement between husband and wife. Apart from the evaluation of professional part, the market price of public housing should be guided by the principle of economy and simplicity to determine through consultation. Judicial practice

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