Research On The Donor's Right Of Arbitrary Rescission

The donor's right of arbitrary rescission is an important part of the donation system in China,and it is the right of repentance given to the donor by law.Looking at the legislative models of donation contracts in various countries,not all of them provide for the right of arbitrary rescission.What is the origin and legitimacy of the system of arbitrary rescission? The right of arbitrary rescission causes the donor to take the initiative in the contract.What are the restrictions on the applicable conditions? Article 186 of the Contract Law stipulates that the donor can rescind the donation contract prior to the transfer of the right of the donated property,and specifies three types of donation contracts that do not apply to the right of arbitrary rescission.The provisions of the law need to be interpreted in the light of disputes and disputes in practice application of the right of arbitrary rescission.Since it is a legal right,is there no restriction on the exercise of the right of arbitrary rescission? Does the donor need to compensate the donee for the loss of trust benefits as a result of the promise? These issues are not regulated by law and need to be further clarified.Based on the current research status of the donor's right of arbitrary rescission,this article studies the related issues of the donor's right of arbitrary rescission in three parts.The first part expounds the theoretical basis of the donor's right of arbitrary rescission.The first is the characteristics of the donation contracts.The most important nature of the donation contracts is that it is free of charge.Judgment of free of charge should be based on the subjective meaning of the parties,not the objective facts.Secondly,from the perspective of comparative law,the current legislativemodels of donation contracts in various countries are mainly divided into two types:one is the "consensual+ formal contract" legislative model represented by France and Germany;the other is the "informal contract + the donor's right of arbitrary rescission" legislative model represented by Japan and China.Finally,the legitimacy of China's stipulation that the donor's right of arbitrary rescission lies in the fact that our donation contract is an consensual and informal contract,and because the donation contract is free of charge,the right of arbitrary rescission is used to ease the effect of the donation contract and balance the parties to the donation interest.The second part discusses the applicable conditions of the donor's right of arbitrary rescission.The first is the active application of conditions,including the existence of established donation contracts and the right of the donated property has not been transferred,the main point is to determine whether there is a donation contract and the reason for arbitrary rescission rights set before the transfer of property rights.The second is the negative application of conditions,that is,the right of arbitrary rescission is not excluded,which refers to a donation contract that is not has already notarized nor has a public welfare or moral obligation nature such as contract on disaster-relief,poverty-relief or disability-relief.Among them,donation contracts of a public welfare nature should be considered for the benefit of an unspecified majority.The scope of public welfare can refer to the provisions of Article 3 of the Charity Law,and only donation contracts of a public welfare nature falling within the scope of the law cannot be arbitrarily rescinded.Donation contracts of the nature of moral obligation should focus on the special relationship between the two parties of the donation,and make a concrete analysis based on social ethics,public order and good customs.Finally,in addition to these three types of donation contracts,there are cases where there is doubt as to whether the right of arbitrary rescission is excluded,for a donation subject to collateral obligations,the donor has the right of arbitrary rescission,regardless of whether the donee performs its obligations.The right of arbitrary rescission is exclusive to the donor and cannot be inherited by the heirs or excluded by prior agreement.The third part studies the exercise of the donor's right of arbitrary rescission.Thedonor's right of arbitrary rescission shall belong to the general right of rescission,not the right of withdrawal or dissolution.The donor may indicate to the donee the intention to rescind the donation contract.In the case of a general real estate donation,where the donor has delivered the real estate to the donee for many years,but has not completed the transfer registration,in accordance with the principle of good faith,the prohibition of abuse of rights and the invalidation of rights,the donor's right of arbitrary rescission should be denied.The exercise of the donor's right will invalidate the donation contract from the outset,and there is no liability for breach of contract.According to the general rational person judges from the experience of daily life,the donor's intention and behavior convince the donee that the donor will not rescind the donation contract.If the donor knows or should know that the donee has prepared for the performance of the contract,the donor still exercises the right of arbitrary rescission should be considered to be a violation of the principle of good faith and is attributable.The donor shall analogize and apply the liability for contracting fault to compensate for the loss of reasonable trust interest of the donee caused by the breach of the obligation of good faith.