Social Sciences in China (Chinese Edition)

No. 8, 2022

The Legal Paradigm of Family Property Functionalism

(Abstract)

Zhao Yu

In the context of the new era, the diversified functions of family property in China have become noticeable. In order to bridge family law and property law and to construct unified concepts and interpretive rules for Family Property Law, we need the methodological support of family functionalism. This can be divided into three legal paradigms on the basis of the functions of family property and applicable fields: the property of daily family life, family business property and family property liquidation. The legal paradigm for the first of these should help to enhance family cohesion and develop positive incentives for a harmonious family style. Technically neutral Property Law should serve the ethical values of Family Law through the innovation of the family life agency system, the limitations of contract freedom in family life property, and the introduction of theories of legal barriers relating to gifts between family members. The second, the legal paradigm of family business property, should contribute to the stability of family property and a smooth operational order. Through the theory of implied entrustment of family property and the principle of independent management of business entities, the public look of the exterior of the business property, the comprehensive relief mechanism for co-owners of family property, and the separation of business debt and family property, it will achieve interface and balance between the family and the market. The third, the legal paradigm of family property liquidation, should help to realize substantive justice in wealth distribution in society, should see through appearances in marital property division, should take into account the reliance on family property of the elderly and minors, and should ensure the stability of the family’s social function. The enjoyment, exercise and disposal of family property are imbued with love, care and responsibility. The different legal paradigms based on the different functions of family property correspond to the variations in people’s mental states.