Discussion On The Rescission Right At The Will Of 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 method of going forward one by one. In the beginning, the thesis introduces the conception the value and function of rescission right .Then the thesis analyses that there are some limitations exist in its theory and practical functions. 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.Except the introduction and epilogue, the text consists of four parts and its outline is written as follow:Part One summarizes the conception of rescission right and points out where it derived from. Then the thesis gives a brief illumination of other rescission right of donation contract. At last, the thesis briefly compares the rescission right at the will of the donor and the rescission right stipulated by law.Part Two discusses the nature and characters of donation contract. First of all, this part discusses how the nature of nude influences the system of donation contract. Then the thesis put forwards the questioning to the value of rescission right at the will of the donor. At last, after confirming the nature of donation contract, the thesis points out those characters of rescission right at the will of the donor are induced: it is unilateral, nude and promissory contact.Part Three points out that 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 indicates that the rescission right at the will of the donor is not advisable reviewing no matter on theory or its practical function.Part Four introduces the legislations of other countries, indicates the defectiveness of the present legislation and provides modification advice. Then some suggestions to perfect the present legislation are provided. At last, this part analyses that such legislative suggestion is reasonable both on theory and in reality.