Study On The Legal Nature And Effect Of The “Gift To The Children” Clause In Divorce Agreements

In recent years,in the case of a divorce agreement,the dispute over the revocation of rights arising from the application of the provisions of the divorce agreement “Gifts for Children”(hereinafter referred to as the “Gifts” clause)has emerged in an endless stream.The "gift" agreed upon at the time of the divorce agreement has the dual characteristics of identity attribute and property attribute,and the legal relationship involved is intertwined and complicated.For this clause that appears in practice,there is no direct and specific norm in China's current law.In view of the nature and effectiveness of the "gift" clause of the divorce agreement,the academic circles have different opinions and no consensus conclusions.The judicial practice community also has no clear rules for handling such cases,which makes the judges feel at a loss.The judges can only proceed according to their own understanding.Discretion,which has led to more and more cases of different courts in the same court.In order to avoid this phenomenon,the author specially made a special study on the "gift" clause agreed by the husband and wife when the divorce was agreed,in order to help the handling of the "gift" clause dispute.This article takes the case of the Supreme Court's communique-Yu Moumou v.Gao Moumou's divorce property dispute case as the entry point,and studies the "gift" clause of the divorce agreement.By analyzing the basic case of the case and the judgments of the two courts,the author concludes that the focus of the dispute in the case is the cancellation of the application for the property rights of the children agreed upon at the time of the divorce.The issue of the withdrawal of the "gift" clause of the divorce agreement appears frequently in practice.The author continues to analyze the case type of the divorce agreement "gift" and finds that the dispute of revoking this clause is concealed.The judicial difficulties faced by the provisions of the "Gift for Children's Property" agreed upon at the time include two issues: one is the definition of the legal nature of the clause,and the other is the legal effect of the clause on internal and external legal effects.This article will be based on two disputes on the “gift” clause of the divorce agreement.In terms of the nature of the "gift" agreement when the agreement is divorced,the author summarizes and analyzes the viewpoints in theory and trial practice,and points out the irrationality of their existence.The author believes that these views cannot be combined with the "grant" in the context of the relationship of dismissal."The terms are fully compatible.Then,based on the interpretation of the legal characteristics of the “gift” clause,the author proposes that the clause should be defined as the divestiture property settlement clause,in order to better explain the integrity of the divorce agreement,and more in line with the “gift” clause in the agreement divorce.Personal and property attributes embodied in the background.In the study of the legal effect of the “gift” clause agreed in the divorce agreement,the author analyzes the three main subjects of the husband and wife,children and creditors.From the perspective of husband and wife,it mainly discusses the establishment and entry into force of the "gift" clause,the revocation of the clause by the husband and wife and the application of the law.From the perspective of the children,the author believes that the third-party interest contract can be adopted,and the child has the right to request the parents to protect his or her survival needs.From the perspective of external creditors,when the creditor's rights and interests are materially damaged or threatened by reality,the creditor has the right to revoke the “gift” agreement.When enforcing the subject matter involved in the “gift” clause,the husband's external debt is paid off on the basis of guaranteeing the basic survival needs of the children in the divorced family.