Study On The Donor's Voluntary Recall

The grant people's right to revoke the contract is the gift comes into effect, grant the right thing and the actual performance delivered before the donor enjoys the right to revoke the gift. Our donor to revoke the right system there are two main problems, one is due to our limited understanding of the nature of the donation contract caused by "whether the issue should be removed"; the other is due to revoke the gift recipient's interests after the lack of necessary protection caused by a "gift contract to protect the interests of both parties imbalances." Promise of grant contracts, the ability to revoke a controversial Chinese theorists hot, that is, the first question, there are two main views: one view, the gift is the Promise of the contract the contract, should be "as good as gold", not to revoke the ; another view, the contract is a practical gift contract, the right to grant specific performance and delivery of materials prior to grant the right to withdraw. Shows that the nature of the grant contract, grant any person the right to revoke the exercise of great significance. I do not agree with the above two viewpoints, the nature of the grant contract should not be static, but dynamic, on different occasions may change its nature. This exhaustive list of gifts sought to place on various occasions, to determine the nature of the gift in order to make more explicit the nature of the donation contract. In addition to the insufficient knowledge of the nature of the donation contract, the donor of any avoidance system in the gift is revoked after the remedial mechanisms are also serious deficiencies in the interest of reference of the theory of common law trust, the author made to improve Chinese people to revoke the gift The new system of remedies for the right perspective: the introduction of the trust interests of the theory, the donee in accordance with donor commitments and expected benefits, and do the necessary preparations, in the gift of a reasonable range of interests should be compensated according to the trust. I grant the contract based on the nature of the new awareness and interest in accordance with the remedial trust, and presents a legislative proposal, summarized as follows: keeping the donor to revoke the right system, according to different occasions, the changing nature of grant contract to determine whether to revoke the exercise of any right, After the grant was revoked, according to the interests of the trust so that the recipient receive reasonable compensation.Addition to the introduction and conclusion, is divided into five parts:The first part is the grant contract and the donor. This section of Le grant contracts and donor concept and the status of the donor, given the contractual nature of the gift central theme of the article to judge the importance, and summed up the grant focuses on the nature of the contract conditions of different occasions and different roughly divided into: general gifts and special gift (depending on the use of sub-grant property), the nature of general practice, mostly gifts, special gifts and more for the promise into nature; movable and immovable property and intangible rights, the gift (depending on different types of gift materials ), and more for the practical real estate, real estate and non-physical assets or established by a fair element of the special effect.The second part is an overview of grant people the right to revoke. This part of "the right to withdraw and revoke the power," "the right to revoke the right of the statutory repeal", "to revoke the rights and 'poverty avoidance'" Concept of the three groups to define the donor to revoke the right meaning: grant people the right to revoke any means: set up and promised gift after the commencement of the contract, the right to grant specific performance and delivery of materials before, the donor enjoys the right to revoke the gift. Analysis and comparison of Japan, Taiwan and the mainland of China grant people the right to revoke the legislation, identifies the three legislative case of difference: the exercise of different subjects and exclusion criteria.The third part were withdrawn from the grant people the right of any foundation system, the role played by norms and values pursued by the three aspects of analysis, demonstrate the existence of such a system is reasonable, mainly: the legislators for gift contract free characteristics, in order to protect the interests of the donor set up this system, the establishment of this system is indeed able to enhance the protection of the donor, to a certain extent, played a practical standard, protecting the gift "and the true meaning autonomy "achieved a certain degree of balance between the interests of both the donation contract.The fourth part is from the law of conflict, trust, loss of profits, contrary to the principles of fairness and good faith, the lack of a malicious person to revoke the right to grant the gift of gift rules and the exercise of public interest to revoke the right of the five areas of the country donor to revoke the right system defects were serious analysis that our country's gift to revoke the rights of people with the revised system, the need for this conclusion.The fifth part is reference and reference legislation of foreign countries or regions, together with the reality put forward legislative proposals, and were demonstrated. Namely: China should retain the right to withdraw any of the donor system, but in the real property, no physical property, the value of large areas of real estate gift to establish the special elements of the contract in force, on the right to remove any restrictions, but due to the exercise of any revocation of grant the interests of the right to cause the loss of the recipient, the recipient to provide effective evidence in the premise, the law shall rely on the recipient's loss of interest in the donator gift within the meaning of protection...