De vuelta a lo esencial: el problema de la naturaleza jurídica de la sociedad de gananciales

Abstract

In Peruvian law, it is still in forcet the old discussion about the legal nature of the community of property. Doctrine and jurisprudence have tried to unify their positions without much success. Of all the theses that have emerged to solve the problem in question, the current discussion oscillates basically between two concrete options: the thesis of co-ownership and the thesis of autonomous assets. The debate is neither very peaceful nor merely theoretical. It is therefore necessary an appropriate solution to the issue, due to the potential conflicts that may arise in practice, particularly in view of the possibility of attachment and execution of common property to ensure payment of personal debts incurred by one of the spouses. For these reasons, this work addresses each of the aforementioned theses with a critical perspective focusing on its main characteristics in order to identify the thesis that best suits the community of property of the current Peruvian Civil Code.