A Study On The Applicable Law Of Couples' Gift

With the enhancement of Chinese comprehensive strength and the increase of the wealth of Chinese citizens, house has been a kind of indispensable property for a Chinese family. Particularly, as for a couple who are about to get married or whose marriage is in crisis, the acquirement for free of a house will to some extent contribute to forming or sustaining the marriage bond. It is, however, not always the case. It is controversial in judicial practice whether or not the convention between a couple on the voluntary conveyance of the house is still enforceable when the marriage bond is dismissed. If the convention aims at determining the attribution of the house, t shall be irrevocable, if the convention, however, aims at the gift of the house, it will be a question whether or not the transferor is entitled to the arbitrary right of revoking the convention as in the general gift contract before the ownership of the house is actually transferred. The question has aroused intense dispute theoretically and practically, and caused the contradictory verdicts in the same or extremely similar cases. The People’s Supreme Court once released relevant regulations to clarify the ground of the judicial trial, which turns out to be not so effective. In my opinion, what matters is not how the law is applied, but which law is applied and whether the law is properly applied. It is the key point and the foundation to determine the nature of such convention for resolving the problem.Based on the explanatory analysis, comparative analysis on the restriction of belongings of the gift between couple for a thorough analysis and study, this article aims to clarify their respective concept, find out the essential characteristics of both, it compared with the legal features in real cases, which conforms to the characteristics of legal act, which is the legal behaviour that is legal nature, and through research and analysis of the nature of the free transfer of the property of couple, to explore whether the current legislation has the problem of unreasonable or deviating from the value orientation.This article is divided into three parts:The first part mainly introduces about the issues raised by the couple transfers of property and the background, the focus of dispute and related the application of law of differences of different connection with the given case, through the brief analysis to develop a solution to solve this problem.The second part is mainly according to the solution steps detailed analysis for free transfer of the property of couple agreed the effects, as well as the correct definition of transfers of marital property agreement method and the evaluation of the nature of the basis, and to find out the fundamental evaluation basis, and clarify the purpose and the role of the contract nature.The third part aims at applying the above-mentioned judging method to the real cases, in order to make connection between the theory and the practice, and make a brief analysis and assessment on the rationality of such judging method.