Research On The Law Application Problems Of Gift Between Husband And Wife In China

Marital relationship is the unity of marital status relationship and property relationship.Both husband and wife,as the civil subject of autonomy,often make various agreements before or during marriage,especially the agreement on the disposition of property.The property agreement between husband and wife varies in type and content,but mainly focusing on the ownership of property between husband and wife.The property agreement between husband and wife mainly includes the agreement on the ownership of the common property of husband and wife and the personal property of husband or wife.The determination and legal application of behavior that personal property of husband or wife is owned by wife or husband or co-owned by husband and wife are the most controversial in practice and theory circles.In order to unify the law application of the above,in 2011,the supreme people's court issued the Interpretation of the Supreme People's Court about Several Problems Concerning the Application of the Marriage Law of the People's Republic of China(III),in which all real estates of husband or wife as agreed to be owned by wife or husband are determined as gifts.The relevant provisions ofContract Lawin China are applicable to this.In theoretical circle,determination of the gift between husband and wife is still controversial,mainly including the gift contract hypothesis,husband-wife property agreement hypothesis and distinction hypothesis.For such determination,this paper argues that the gift between husband and wiferefers to the behavior that husband or wife gives the property under its ownership to wife or husband free of charge during the existence of marriage relationship,including the behaviors that the property of husband or wife is owned by wife or husband and that the property owned by husband or wife is co-owned by husband and wife.The contract for gift between husband and wife is applicable to the gift between husband and wife,and compared with an ordinary gift contract,its subjects have the spousal relationship,which does not affect the determination of such applicability.In terms of the relationship between the gift between husband and wife and property agreement between husband and wife,this paper argues that in China's marriage law,property system mode agreed by husband and wife is open,and the gift between husband and wife should be a type of theproperty agreement between them.However,the provisions of gift contract in theContract Lawof China do not indicate the exception of spousal relationship,thus the relevant provisions of gift contract in theContract Lawof China should still apply to the gift between husband and wife.From the perspective of comparative law,the general rules for gift contract in theContract Lawshould apply to the gift between husband and wife,but considering the particularity of the relationship between husband and wife,other particular rules shall also be applicable.First,the scope of the gift between husband and wife should be limited to the property owned by either of husband and wife.Husband and wife may also make a gift of the property to be acquired by them in the future.Second,the change of property right of the gift between husband and wife should be made public according to the change rules of property right,and the gift behavior upon such publication should be deemed completed.More precisely,the alteration of property rights should be registered for the real estate,the movable property should be delivered and the change of the company's articles of association,register of shareholders and corresponding business registration information should be completed for the stock equity.Third,revocation of the gift between husband and wife.Before transferring the gift property right,the presenter may exercise the arbitrary revocation right,the exercise of which should be restricted.In the judicial practice,the specific marriage situation of husband and wife should be combined tomake a comprehensive judgment except that the gift has moral nature or cannot be revocated arbitrarily through notarization.Fourth,elements of the form of gift between husband and wife should be stipulated different from the general gift.The property gift between husband and wife shall be made in written form in accordance with the strict requirements,and the gift contract of high-value movable property and real estate should also be notarized.