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Research On Right Of Defense In Poverty

Posted on:2015-10-02Degree:MasterType:Thesis
Country:ChinaCandidate:P ZhangFull Text:PDF
Abstract/Summary:PDF Full Text Request
Contract of Gift is one of the most well-known and important contracts stipulated by the Contract Law in China.Due to such characteristics as being unilateral and gratuitous,the legislations of different counties?regions? all confer the donors with rights of preferential treatment so as to protect their interests.Drawing on the civil codes of Taiwan region and German,the Contract Law in Chinese mainland stipulates the right of defense in poverty for the donors in Article 195.However,this provision is too simple with poor operability.Moreover,it seems to conflict with the right of revocation for the donors stipulated in Article 186 of the Contract Law and the application of the bride price returning rules stipulated in Article 10 in the 2nd edition of On the Interpretation and Application of the Marriage Law of the PRC by the Supreme People’s Court.This thesis commences with the general theories of the right of defense in poverty and analyzes the application elements of the right of defense in poverty in details in hope of a systematic understanding of the right of defense in poverty.It then discusses several problems about the right of defense in poverty and puts forwards some suggestions.This thesis consists of four parts.The first part mainly summarized scholars’ general theory of poverty state counterplead right,including the concept,the nature and the theoretical basis of poverty state counterplead right as the foundation for later discussion.The second part is the analysis of the rights related to poverty state counterplead right.This part discusses the nature of the 195 th Article of Contract Law by comparing the legislative models based on poverty state counterplead right and cancellation right and offers a suggestion for legislation after the investigation and recapitulation of claim of restitution out of property state.The third part is the exploration into the scope of application of poverty state counterplead right.The gist for the discussion is expounded by referring to related legislation in Germany and Japan from the angle of the conflicting scopes of poverty state counterplead right and arbitrary cancellation right.The fourth part presents detailed analysis and discussion about the essentials to apply poverty state counterplead right.Namely,by dint of meticulous perusal of law articles,this part puts forward the viewpoint of several occasions where the subject of poverty state counterplead right may be expanded and the application essentials for each occasion.
Keywords/Search Tags:Right of defense in poverty, Claim of restitution, The arbitrary right of revocation, The applicable elements
PDF Full Text Request
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