The Study On The Application Of Law Of The Gift Agreement Of Real Estate Between Husband And Wife

The theoretical research and judicial practice have no unified opinions on the treatment of the dispute on the gift agreement of real estate between husband and wife.There are points of view that the Contract Law is applicable and that the Marriage Law is applicable.Based on the selected cases,the gift agreement of real estate between husband and wife in this paper is made by the husband and wife during the marriage relationship,or by the persons who are about to become husband and wife before the marriage registration,which does not include the gift agreement of real estate in the divorce agreement.The husband and wife property agreement referred in this paper is also a narrow definition that the husband and wife or the persons who are about to become husband and wife entered into a contract as the choosen matrimonial property system.This article includes the introduction,text and conclusion.The text divides into four parts.The first part is the proposal of the problem.This part introduces three kinds of cases which represent the agreement of real estate gift between husband and wife,and compares the different laws that the court applies to the same type of agreement in the judicial practice in our country,to put forward the studied problem.The second part is the dispute about the legal application of the gift agreement of real estate between husband and wife.This part concludes and introduces the theory disputes and the practice disputes about the application of law.The theoretical disputes include: "husband and wife property agreement theory",thinking that the stipulation of the husband and wife agreement property system in the Marriage Law is applicable,"general gift theory" insisting that the Contract Law about the general gift contract is better,and "special gift theory",holding that the relevant provisions of the Contract Law,except the clause of the right of arbitrary rescission,is applicable.The practical disputes include: if it is recognized as the agreement of husband and wife property,the Marriage Law applies,if it is recognized as a gift contract,the clause of the right of rescission of the Contract Law shall apply.The third part is the cause of the dispute about the legal application of the gift agreement of real estate between husband and wife.The first reason is that the concept of real estate gift agreement between husband and wife itself is quite vague.What kind of content and what form of agreement can be defined as the real estate gift agreement between husband and wife are controversial.The written free offer agreement,about a certain specific real estate,made between husband and wife or persons to become husband and wife,is the real estate gift agreement between the husband and wife,which does not distinguish the partial gift or the entire gift.The second reason is that the nature of the agreement between husband and wife real estate gift is not accurate.The main views on the nature of the agreement between husband and wife are "general gift theory","husband and wife property agreement theory" and "special gift theory".Through the evaluation of the advantages and disadvantages of these theories,it is clear that the gift agreement of real estate between husband and wife belongs to the gift contract with certain particularity.The fourth part is the suggestion of the law application of the gift agreement of real estate between husband and wife.In this part,it is suggested that,for the dispute over the gift agreement of real estate between husband and wife,the Contract Law should be applied to solve the confusion problem in the law application,and the stipulation of husband and wife agreed property system in the Marriage Law should be excluded.Based on the particularity of the gift agreement of real estate between husband and wife,the application of "moral obligation" in the restriction clause of arbitrary rescission right is emphasized in the course of applying Contract Law.Make clear the application of the right of legal rescission clause.