人力资本离婚清算的法律应对

在婚姻存续期间，由于受限于家庭生活的种种客观因素，往往会出现配偶一方去考取学位、资格，而另一方则牺牲自身发展的机会、为家庭做出贡献的情况。从婚姻的本质考虑，在离婚时需要对在婚姻存续期间取得的人力资本进行清算，以引导婚姻双方在婚姻存续期间更多地考虑家庭的共同福利而不仅局限于自己狭隘的私人利益。离婚清算的理论基础“无形财产分割说”和“利益损失补偿说”各有利弊。我国《婚姻法》及其司法解释尚未对此做出详细规定，建议结合采用无形财产分割和恢复性扶养制度。

Legal Responses to the Human Capital Settlement in Divorce Cases

In marriage, it is not uncommon that one spouse sacrifices his or her own chances of development in order to support the other to build up human capitals such as degrees or certificate. Guiding the couples to think about the common goods of the family instead of being selfish, it is necessary to settle the human capital while divorce. There are basic two approaches, namely, to treat and divide the human capital as intangible assets, or to compensate the one who made sacrifice. Both of them have advantages and weakness. Chinese current Marriage Law doesn＇ t address this issue. This article proposes to regard human capital as intangible assets, while at the same time, to make available the restorative foster mechamsm.