Discussion On Donation Contract

Donation contract is the typical representative of nude contract. It is a arguing question that whether donation contract is promissory or practice. Before the publication of Contract Law of our country, there are academic disputes on donation between practice and promise. After the publication of Contract Law, the eleventh chapter of its specific provisions particularly regulates donation contract, the 185 and 186 articles cooperating to show the attitude by our legislation on the nature and validity that donation contract is promissory, which comes into being executed and effect upon agreement by the two parties on the meetings of donation, without any given contractual form. But before the transfer of the right of donated property, the donor can rescind the donation except for three kinds of donation contracts. Such right of rescission is called rescission right at the will of the donor. There are not only quite a lot of appreciations, but also many oppugns after the publication of Contract Law. As a result, it is necessary to discriminate a series of questions on donation, such as the nature, validity and etc, on which the author will do some research. The structure of the thesis adopts the methods of history and comparison and adheres to the way in proper sequence and in layer upon layer. In the beginning, the thesis introduces the history developing origins of donation and indicates that donation has its value as a kind of contract. Next, the thesis analyses the nature of donation and upon the nature discusses the characters of donation. Then, the thesis does special research and analysis on the special matters on donation. At last, with reference to formula regulations on donation contract by other countries, combining the custom and practice of our country, the thesis puts forward some modifications on articles of donation. In particular, the thesis has a new light on the nature, the formula and the rescission right at the will of donor. Except the introduction and epilogue, the text consists of four parts and its outline is written as follow: Part One summarizes the history origins and development of donation contract. On the clue of time and with line of Roman Law, this part introduces the brief and cursory regulations before the period of Roman Law, more perfect regulations in the period of Roman Law and the successive and developed regulations after the period of Roman Law. The status of donation contract, as an independent kind of contract in the actual life, is discussed and its own value is specially indicated that has an influence on the establishment of the concrete criterion and system of donation contract by each country. Part Two discusses the nature and characters of donation contract. First of all, this part introduces the legislation and viewpoints of scholars on the nature of donation contract. Secondly, the origin of real contract is discussed, and the conclusion is drawn that real contact is only one kind of contracts during the contractual theory; reviewing the present legislation, the categories are limited and scope of real contract is narrow; founded on analysis on the viewpoints of scholars, on theory and in practice, donation contract is suitable to be promissory contract. Then, after confirming the nature of donation contract, its characters are induced: it is two-parties legal behavior; it is unilateral, nude and promissory contact; it is a contract to delivery the right of property ownership. Part Three researches some special matters of donation contract. Firstly, from the analysis on the concepts of additional item of legal behavior and the burden of legal behavior, this part analyzes burden-added donation, and indicates the discrimination burden-added donation from condition-added donation and term-added donation; and clarifies the main characters and effect of burden-added donation. Secondly, this part discriminates the mixed donation, compares and analyses the viewpoints of scholarsand demonstrates that it is purchase and sale contract. Thirdly, the legitimate foundation on rescission right by donor is oppugned by reviewing its legislation cases and by four aspects, the gratuitousness affecting on the value of donation, the principle of free intention by contractual parties, the provisions of rescission right in the civil law and the actual effect and function of other systems of donation contract. At last, this part discusses the formality of donation, introduces the modes of formal contract in civil law system and those in common law system; comparing such two kinds of criterions, illumination is reached that it is the same logic base point to heighten earnest standard by the two different systems when the donor expresses his intention. Part Four introduces the contract law's legislation course of our country, indicates the defectiveness of the present legislation and provides modification advice. Firstly, it describes the establishment background or course of the donation contract in our country, analyzes and comments on the provisions, and brings about author's questions. Secondly, some suggestions to perfect the present legislation are provided: 1. to confirm the nature of donation; 2. to bowdlerize the rescission right at will of donor; 3. to affirm the intention of the donor by formality in some donation contract. It is according to the value of the donation property to decide on whether or not formality is necessary; that is, the donation contract with major value is to be formal, while the one with small value is to informal except stipulation by parties. Combining the custom and practice of our country, such legislative suggestion is reasonable both on theory and in reality. There is possible to be formal defectiveness because of the formality adopted by donation contract, which is advised by the author to get its relief by invalidity system of contract.