A Study On The Spouse's Right To Arbitrarily Revoke The Gift Of Children In The Divorce Agreement

Article 186 of the contract law of China stipulates that the donator of a general gift contract has the right to cancel the gift at will.Regarding the issue of whether the husband and wife can exercise the right to cancel the gift of their children in the divorce agreement,there are different views in theory,which are manifested in the affirmation of arbitrary revocation right and the negation of arbitrary revocation right.In practice,different judges have different treatment methods,and the main point of disagreement is whether to affirm the application of the right of arbitrary revocation in the divorce agreement.This paper holds that the donor in the divorce agreement does not enjoy the right of arbitrary revocation.From the legislative point of view,we must answer why the donor in the divorce agreement should not enjoy the right of arbitrary revocation.First of all,although there are a variety of understanding of the nature of divorce agreement,but through the comparative analysis of various theories,it can be found that "compound agreement" is the most consistent with its nature,according to this theory,divorce agreement has a strong identity law property,and different from the general contract;Second,through to the divorce agreement in terms of the nature of the gift of interpretation and analysis of the main body and the suitable environment particularity in divorce agreement,come to the conclusion that divorce agreement has the integrity,husband and wife a gift for her children in the divorce agreement clause should be dealt with in the overall perspective,precipitation and should not be one-sided property relationship is donative rules shall apply.The reason why the donor is not entitled to arbitrary revocation is not only the maintenance of the balance of interests in the family,but also the stability of social relations,and the clarification of this issue is conducive to reducing litigation.From the perspective of interpretation,it is necessary to demonstrate the applicable path of law in the divorce agreement.On the one hand,the "contract law" in article 2(2)a marriage agreement provisions of exception,rather than the specialprovisions of the "marriage law" and "contract law" under "general civil law" and together,the two position is the same,so should not be defined "marriage law" to "contract law" the special law of identity relationship agreement should not be used "contract law";General provisions of applicable law behavior logic,on the other hand,should be "part-general rules",made of special provisions to the general provisions,divorce agreement has particularity on its legal attribute and specific content,but the particularity of divorce agreement does not affect its general provisions,the application of law behavior for the applicable law of identity relationship agreement,shall,first of all,as a special method of "marriage law" the provisions shall be applicable,and the face of the "marriage law" the regulation cannot solve,namely the effect of the divorce problem,should be up for the civil law general principles,general provisions on the legal act.However,according to the general provisions of the legal act,the legal act should be legally binding upon itself,so the donator should not be given the right of arbitrary revocation.