A Study On The Validity Of Giving Children's Property In Divorce Agreement

In recent years,with the development of socialist market economy and the perfection of Marriage and Family system,Chinese have a deeper understanding of "freedom of marriage",freedom to marry and divorce has gradually become a social consensus.With the divorce rate rising,in divorce,couples often agree on the dissolution of marriage,property division,debt commitment,child support,divorce financial compensation and so on by means of divorce agreement.This article takes the case in judicial practice as the entry point,take He and Ran property dispute case and Guo and Guo Mou's gift contract dispute case as examples,summed up the focus of the dispute between the defendants and the main points of view of the judge involved in the case,combining the provisions of the Marriage Law of our country on divorce system,discusses the nature and legal application of the property clause of the children given in the divorce agreement,whether the parties to the divorce agreement enjoy the right of revocation and whether the child enjoys the right of claim,discuss the legal theories involved in the case cited in this article,and make suggestions for improving related laws,hope to resolve the disputes in practice,to ensure the unity and authority of the law.The number of positive texts in the paper is about 26,000 words.In terms of structure,this paper is divided into five parts:The first part includes the cause of action,the basic situation of the case and the judgment of the court.This article cites the civil judgment of the Fourth Intermediate People's Court of Chongqing and the Intermediate People's Court of Ningde.After introducing the plaintiff's claim and the cause of action,summed up the dispute focus of the case,as the main content of the later discussion.The focus of the dispute in the case includes the following points: First,discuss the nature of the property given to the child in the divorce agreement.Second,what kind of law should this clause apply.Third,whether the parties have the right of revocation.The fourth is whether the child has the right of claim if the parents does not fulfill the obligation to pay.The second part define the nature of the property given to the child in the divorce agreement.The author summarized the following theories: Presentation contract,purposed bestowal,Contract law for third party interests and the agreement of the couple's property.In my opinion,the clause of giving property to the children in the divorce agreement is essentially the division of the property between the two sides of the divorce,In conjunction with the dissolution of marriage,debt commitment,and child support in the divorce agreement,the whole divorce agreement is formed,it is inseparable from other agreements in the divorce agreement and should be treated as a whole.Therefore,the author agree with the divorce agreement as a whole.The third part discuss the legal application of the agreement on the gift property of the children in the divorce agreement.At present,the nature of this kind of behavior is not clear in our country,so it is controversial whether the Contract Law or the Marriage Law should be applied to it.In the author's opinion,in the application of law to such cases,due to the particularity of the subject status of divorce agreement,the Marriage Law should be applied preferentially.If there is no provision in the Marriage Law,the relevant provisions of other laws shall apply.The fourth part is to discuss whether the agreement on the gift of children's property in divorce agreement can be revoked.Because of the inconsistency of the nature and the application of law,there are many different judgments in such cases,even if the judgment results are the same,the judgment basis is different.After summing up a large number of judgments and combining with theoretical research,the author thinks that whether the property gift agreement can be revoked in divorce agreement should be considered from three aspects,including the relationship between parents,the relationship between parents and children,the relationship between parties to divorce agreement and creditors outside the case.The fifth part studies whether the children have the litigation qualifications and the right of claim when the parents do not fulfill the obligation of payment.In view of this problem,there are divergent opinions in the theoretical and practical circles.The author believes that,based on the protection of children's legitimate rights and interests,when parents fail to fulfill the obligations stipulated in the divorce agreement,children have the right to claim.Thus,on the one hand,the principle of honesty and trustworthiness is implemented,on the other hand,the principle of protecting children's legitimate rights and interests in the Marriage law is embodied,which is more conducive to the reasonable resolution of social contradictions.