Study On The Application Of Law Of Marital Property Gift

In the theoretical research and judicial practice of marriage law,the connotation and denotation of the gift of property between husband and wife is not clear,and it is often compared to marital property system and the division of property in a divorce agreement,but they all belong to the category of the marital property agreement and reveal the relationship and difference of the three.Article 19 of our living "Marriage Law" and the formal introduction of "Marriage judicial interpretation(2)" and"Marriage judicial interpretation(3)" make the law separately for the three cases,to a certain extent,it effectively alleviates the difficulties encountered in the application of law in judicial practice.The existing research mostly focus on the distinctions between different situations and choosing different legal norms to solve the problem.But there is a big controversy over the similarities and difference between marital property gift and marital property system about nature and type,as well as the connection and difference between marital property gift and property division of divorce agreement.At the same time,because of the specialty in family matters,it is not easy to distinguish the three cases in the judicial practice.Through the in-depth investigation,collecting a lot of cases and materials,summing them up.The author draws the conclusion that the contracting time and different types of property ownership will have an impact on the outcome of the judicial ruling,this can lead to application of law in judicial practice is very complex.According to "Marriage judicial interpretation(3)"the sixth regulation:general donative code apply to marital property gift,and it is also easy to produce unreasonable judgments.Prior to registration of changes in house property,the donor may exercise the arbitrary right of revocation to revoke the gift contract.Marital property gift used to achieve the maintenance of marriage and family stability,the donor makes a property gift contract to make up for his own mistake or thank for the other industrious payouts.The marital property gift is a special and moral obligation gift,if general donative code apply to marital property gift,the legal effect is arbitrary and does not reflect the particularity of the marital property relationship attached to the personal relationship.This paper mainly adopts the methods of case-studies and comparative research,and uses of dialectical thinking to seek common ground and reserve differences on this issue.Discover the nature of the problem is neither differences between marital property gift and marital property system nor the different natures between the marital property gift and property division of divorce agreement.Actually the problem is focused on whether the legal norms to adjust marital property gift should reflect the particularity of the marital property relationship as with other marital property agreement situations.That is to say whether is reasonable to exercise the arbitrary right to revoke the gift contract in marriage.By reviewing the historical evolution of gift contract,the gift was not a kind of contract in Rome law period,then the gift was included in the contract area by the theory of the contract law of the Scholastics.However,the binding force of the gift contract is not from the consensus of both parties,but the gift embodies Aristotle’s concept of virtue.With the vigorous development of the modern contract law theory,the idea of "generosity" is gradually forgotten.Civil law countries require the establishment of gift contract in addition to the same meaning,but also require external forms.However arbitrary right of revocation does not covered by Civil law countries legislation.As Originating from the worshipping of "Doctrine of meaning" of Modern contract law theory,the gift is deemed as a consensual contract and arbitrary right of revocation is stipulated in Chinese mainland,Chinese Taiwan and Japan legislation,but arbitrary right of revocation has an impact on the binding force of gift contract.I think we should return to the original appearance of the gift contract and recognize the connotation of moral obligation in the gift of husband and wife,giving new constraints on marital property agreement with the help of external form.On the other hand,it can also avoid the donor make a donation on impulse.It is worth mentioning that contract under fraud or threat or other legal rescission circumstances should be revocable,in order to protect the donor’s legitimate rights and interests.