On The Bestowal Of The Divorce Agreement In The Application Of Law

The bestowal of the divorce agreement belongs to the field between the Contract Law and the Marriage Law.There is no consensus in the theoretical research and the judicial practice on the law of application of the bestowal in the divorce agreement.The bestowal,dissolve of the marriage as well as the child support consists of the divorce agreement.The bestowal of the divorce agreement shares difference with the pure property bestowal as the result of its links to the status relationship.As for the bestowal of the divorce agreement.the stipulations in theContract Laware different from it in theMarriageLaw.Applying different laws will have totally different adjudications.In addition,the judge can apply different rules in accordance with different laws.In result,the different adjudications would contribute chaos to the application of law.In addition to the introduction,the body is divided into five parts,as follows:The first part analyzes the different viewpoints about the nature of the bestowal of the divorce agreement,and clarifies the author's viewpoint.There are three theories of the nature of the bestowal of the divorce agreement:presentation contract,purposed bestowal and the agreement of the couple's property.Presentation contract considers the bestowal of the divorce agreement as the contract of presentation,applying the Law of Contract.Purposed bestowal considers the bestowal of the divorce agreement as the contract of presentation with some purposes,applying the Law of Contract but not the rules of presentation contract.The agreement of the couple's property considers the bestowal as the agreement of the couple,applying the Law of Marriage,by which the couple shall agree to transfer the ownership of the property.Thesecond part analyzes the problems about application oflaw from a practical point of view.According to the nature of bestowal.,different laws applied.If the nature is donative contract,the relevant provisions of the Contract Law shall be applied.we may revoke the bestowal according to the actual situation.If the nature is the gift with a purpose,the donor cannot revoke the bestowal because of moral obligation.If the nature is the marital property agreement,the Law of Marriageshall be applied.When the agreement reached,the property rights transfer from donor to donee.The third part mainly clarifies two circumstances of the application of the law.Applying the Law of Contract produces tow consequences,one of which is to make the determination in accordance with the general rules of presentation,the other of which is in accordance with the special rules.Applying the article of nineteen of theLaw of Marriage is the result of considering the bestowal as the agreement of the couple's property.This paper compares the different consequences of the Law of Contract and the Law of Marriage,and proposes the opinions by analyzing the advantages and disadvantages.The forth part analyzes the reason why the controversies in the application of law exist in the bestowal of the divorce agreement.There are three aspects:the distinction of the theory is not complete,the choice of the value is in controversy,and the rules of judgment are not certified.The ways to differentiate the agreement of the couple's property with the presentation contract mainly are the "theory of obligation" and "the theory of status",however by which it cannot clarify the meanings.The controversy in the application of law embodies the controversy of "autonomy of will" and "good faith".In addition,the Law of Contract and the Law of Marriage stipulate different rules about the bestowal.The different chooses of the rules of the law also contribute the difference of the application of law.The fifth part proposes the resolution on the discussion of this paper.The bestowal of the divorce agreement is closely related to the status relationship,combined with the dissolution of the marriage and child support as the whole.As result,the bestowal shall apply the Law of Marriage,and the ownership shall be transferred to the opposite when the parties agree to bestowal.Nevertheless,as the result of the sophisticated reality,to protect the legitimate rights and interests of the party and balance the interests of the parties,this paper illustrates the circumstances which shall apply the Law of Contract but not the Law of Marriage.These circumstances are:the property in the bestowal refers to the interests of the third partyand the donee is at fault.Under these circumstances,the donor may exercise the right of revocation to revoke the contract to protect the benefit of the donor.