On The Irrevocability Of Parents' Gift To Offspring In The Divorce Agreement

Since 2002,China's divorce rate has been increasing year by year.According to the business intelligence data,in 2016,almost 314.9 million couples registereddivorce in China's civil affairs department.The crude divorce rate is about 2.8�,increasing 0.1�over the previous year.Disputes arising from divorce gradually present the following characteristics.Firstly,the cases are increasing fast;secondly,the application of lawis difficult to choose;thirdly,it is difficult for the court to judge.In practice,most couples choose to divorce by agreement.At the same time,they add the issues about child support,property division and other matters into the agreement.In the divorce agreement,the distribution of common property,especially the disposition of property,often becomes the key issue.The husband and wife,either for the quick dissolution of the marriage,or for the compensation of their offspring,often choose the offspring as the balance of interests between them,and the property will be presented to their offspring.However,the effect of the implementation is not satisfactory.After reaching the purpose of divorce,it is often the case that one party revokes the gift to the offspring because the property has not yet been transferred.In theory,there exists different perspectives on whether the gift can be revoked.In the judicial practice,the application of law is always confusing,since the judges have different understanding of the nature of gift.This paper will analyze the cases in practice,focusing-on the legal nature of the gift and the application of law.In order to solve this judicial problem that whether parents' gift to offspring in the divorce agreement can be revoked or not.In addition to the introduction and conclusion,this paper is divided into four parts:The first part defines the legal characteristics of parents' gift to offspring in the divorce agreement.It is obvious that the gift to offspring in divorce agreement is a special agreement which is a combination of property and identity attributes,based on the release of the identity relationship.The second part presents the controversial views.On the one hand,the author analyzes the different viewpoints of the distinction system and the negative system.On the other hand,combined with the real cases in referee network,the author explores the referee path in trials.The third part analyzes whether theparents' gift to the offspring in divorce agreement can be revoked.At first,the author re-examines the nature of the gift in the divorce agreement,and argues that it does not meet the requirements of the establishment of the contract.After the divorce is fulfilled,the gift of the property will take effect at the same time,and the parties are legally bound by that.Then,the author focuses on whether the gift in the divorce agreement is revocable and discusses the problem from principles and exceptions.The fourth part demonstrates that arbitrary revocation should be prohibited by law.The author gives suggestion that the principles should be adhered to and the measures should be taken,looking forward to providing clear guidelines for trials.