Study On The Nature And Specific Effect Of The Real Estate Gift To Children Clause In Divorce Agreement

Based on a detailed review of the cases in practice,this essay explores the nature and specific effect of the real estate gift to children clause in the divorce agreement.The full text follows the basic principles of agreement concerning personal relationships law governed by other provisions of the civil law,such as the Contract Law and the Property Right Law,when there are no clear provisions in the Marriage Law.Regarding the nature of the real estate gift to children clause in the divorce agreement where the husband and wife agree to share the common property with their children,the reason why the parents made such an arrangement for property is not for the purpose of a free gift,and is essentially different from the gift contract.And other views extended based on the gift contract,the gift contract fulfills a moral obligation,"purpose gift",analogy of notarized gift contract theory are all unreasonable.The real estate gift to children clause in the divorce agreement should be the third-party interests contract in nature.Although there are loopholes in third-party interests contract in China's Contract Law at present,it can be seen from the draft Contract part of Civil Code that legislators have stipulated third-party interests contract.Although the relevant provisions have not clearly stipulated specific issues such as the effectiveness of third-party interests contract,it is undeniable that they have clearly recognized the rationality of third party contracts in China.Identifying it as a thirdparty interests contract is more in line with the autonomy of the parents,and granting children independent claims is also more conducive to protecting their interests.On the basis of a third-party interests contract between the parent and the child,the agreement on the ownership of the property in the divorce agreement is essentially part of the divorce property division agreement,and the other divorce agreements on common property division and debt settlement,divorce economy Contents such as assistance and divorce damage compensation are prerequisites and results for each other.They form a whole and are indivisible.Therefore,the author believes that the integrity of this clause should be explained from the correlation between the divorce property division agreement and other property-related clauses in the divorce agreement.On the basis of clarifying the nature of the clause in the divorce agreement,the effectiveness of the clause is then analyzed.The first is that children can have the right of direct performance claims,which can be brought as a plaintiff to the court.Secondly,with regard to the right of parents to revoke or change,the legal right of revocation with flaws in the validity of the contract and the right of the parties to cancel should be discussed separately.Generally speaking,the right of rescission due to statutory situations such as fraud and coercion in the contract,is not restricted by the third party.Although in the divorce agreement,it is difficult to determine that there are other revocable situations,such as obvious unfairness,danger of taking advantage of people,etc.,if the parties do provide sufficient evidence to prove that the court should also support their right of revocation.Parents' right to change or withdraw,as it involves the interests of a third party,should be restricted after the child's intention of acceptance or after a reasonable period of time has not been explicitly rejected.However,there are exceptions.If both parents have significantly deteriorated due to the economic situation,they can claim to apply the principle of change of situation to revoke or change the relevant agreement.In the case of creditors,if the creditor's rights are established first,the divorce agreement comes into effect later,and the creditor can prove that the debtor is malicious and cause actual damage to the realization of the creditor's rights,the unreasonable low-price transfer rules in the creditor's right of withdrawal may be applied and allowed to be cancelled.When an ordinary creditor applies for enforcement of the agreed real estate,and the child raises an objection to the execution according to the agreement in the divorce agreement,the factors such as the nature of the creditor's rights,whether the child is at fault,and the child's survival benefits should be considered.We must not only prevent couples from evading debts through a divorce agreement,but also try to maintain a balance between the interests of creditors and children.Even if the children's claims are not enough to preclude enforcement,the children's normal life should be guaranteed during the enforcement process.