Study On The Right Of With Drawing The Dotation Contract

A gift contract is the contract typical of free contract. Its obvious characteristic is that the donee has right to get the donor's property without reward. The gift contracts are not the main forms used in business, but gift is closely related to property ownership such as buying and exchanging. The gift contracts as a part of legal system are of social significance. Part one illustrates a gift contract's characteristic, that is, single responsibility and free, by comparing with sales contracts and so on. By reviewing legislations of nature of gift contracts in the world, I conclude two mainstream theories: one is that a gift contract is real legal act; the other is that a gift contract is consensual legal act. I explain reasons why our country adopts the later one. Necessities and rationality and value of existence of right of revocation is also illustrated on the basis of a gift contract's free and consensual nature. Part two introduces legislations of right of revocation of a gift contract, including discretionary right of revocation of Japan and Taiwan, and statutory right of revocation of Italy, German and France. In this part, reasons of existence of right of revocation are emphasized, that is, Chinese law regards a gift contract as consensual act. In China, right of classified into two kinds: statutory right of revocation and consensual right of revocation. I analyze conditions of applying them. There are three conditions of fulfilling statutory right of revocation, which aims to punish the donees'ungrateful behaviors. While consensual right of revocation has less stick conditions to apply, donors have right to decide whether to fulfill gift contracts or not before transferring gift to donnees.Shortcomings of right of revocation system, especially risks of misusing consensual right of revocation are pointed out in Part three. Misusing consensual right of revocation breaks fundamental civil rule—principle of good faith, but there is no remedial regulations so that donees'trust interests can not well protected by law. Another shortcoming of consensual right of revocation is to make a gift contract unpredictable. It is not sure that a gift contract will be carried out or not. The stability of it is much less than that of sales contract. I suggest that system of contracting negligence responsibility should be introduced to gift contracts system to strike a balance between donors and donees. In addition, I think there are contradictions between right of revocation system and poor right of pleadings system. Because there are few restrictive conditions of applying consensual right of revocation, many rights are mixed together and poor right of pleadings system is even useless. In order to solve these problems, I give some advice to take full advantages of consensual right of revocation on the basis of balancing donors'right of revocation and other rights.