| The parties agreed in the divorce agreement to donate the property to the child.After the marital relationship was dissolved,one party reluctantly demanded that the gift be revoked.The actual practice of the act is unclear whether the act is a gift,but the referee has not revoked the gift.The practice ignores the relevant provisions of the gift contract cannot be applied at all When there is no gift relationship between the parties in the case.The Supreme People’s Court of the People’s Republic of China(hereinafter referred to as the Supreme People’s Court)lists such cases as typical cases.Although the Supreme Court gave an explanation of non-cancellation in the typical case analysis,it did not give a clear legal application.This leads to different reasons and even contradictions in the judicial practice.Most courts considered that the provisions of the Contract Law were not applicable and should be judged according to Article 8 of the Judicial Interpretation II of the Marriage Law;a few courts considered that the provisions of the Contract Law on the gift contract could be applied;and that the agreement was a purposeful gift,At the same time,the relevant provisions of the Marriage Law and the Contract Law are applied and interpreted within the scope of the purpose of giving gifts.The author thinks that the referee is confused because the Supreme Law gives the application of Article 186 of the Contract Law,but does not specify the nature of the divorce agreement,nor does it indicate whether the agreement should be regulated in accordance with the provisions of the Marriage Law,or should it be in accordance with the gift contract.Regulations.By comparing the clause with the general gift,the author can conclude that the gift relationship can only be formed between the parties under certain circumstances.In the non-specific case,the parties are not a gift or a special gift relationship.When a gift relationship is established between the parties,the gift of the party may be revoked in accordance with the relevant provisions of the Contract Law on the gift contract in accordance with the interpretation of the Supreme Law.When the parties do not establish a gift relationship,they only look for an explanation path from the agreement itself.The main body of the article is divided into three parts.The first part combs and analyzes the Shanghai court’s recent judgments on this type of case,and combines the typical case analysis of the Supreme Law to find out the reason for the current inconsistency of the referee,that is,the interpretation of the Supreme Law obscures the nature of the divorce agreement,making the local court not aware of it.One.The second part analyzes the current academic understanding of this clause,the consideration of the application of the law,and how to interpret the non-cancelled referee results in their respective solutions.The third part starts with the last referee reason of the Supreme Law,analyzes whether the clause belongs to the gift contract,and under what circumstances the gift relationship is established,so as to obtain the application of Article 186 of the Contract Law.The analysis in the first two sections shows that when the parties have no compensation and promise to accept the two elements,they constitute a general gift relationship.The third section analyzes the special case,that is,when the dissolution of the marriage relationship is closely related to the “gift” behavior and does not constitute a gift when they are mutually conditional.Sections IV and V respectively analyze how the “gift” clause should be interpreted in both cases of composition and non-constitution.The circumstances constituting the gift apply to the relevant provisions of the Contract Law on the gift contract to explain the contract.The situation that does not constitute a gift is explained from the perspective of the validity and performance of the contract itself,mainly whether the clause of the divorce agreement has validity and whether there is a barrier to fulfillment.Two angles are discussed. |
PDF Full Text Request