The Law Application Of The Clause Of "Donating Children’s Real Estate" In Divorce Agreement

In the divorce agreement "gift for children’s property" refers to a husband and wife agreed in the divorce agreement will all one party or both parties Shared property owned by children.After divorce agreement is effective,the situation that did not handle household transfer for many years commonly exists,bring about the dispute that husband and wife one party claims to revoke "gift" provision easily.The "gift property" clause in the divorce agreement involves many civil laws such as contract law,marriage law and property law.In practice,when judges try such cases,they show different ways of applying the law,leading to "different judgments in the same case".The first part is a practical investigation of the divorce agreement "gift to children real estate" case.There are more than ten kinds of qualitative provisions of the "gift to children’s house property" in the divorce agreement.There are two kinds of recognition of legal effect: "revocable gift" and "irrevocable gift".The laws applied in different cases are also different,mainly involving the marriage law,the contract law,the property law,the general provisions of the civil law and the general provisions of the civil law.The second partr analyzes the legal application dilemma of the "gift to children house property" clause in the divorce agreement.The dilemma of law application is firstly reflected in the choice of contract law and marriage law.The "gift of property to children" clause of the divorce agreement precluded the exercise of arbitrary revocation right of article 186 of the contract law,but the law still has room for application.In combination with judicial practice and theoretical disputes,the causes of the disputes on the application of law mainly include two aspects: imperfect laws and conflicting value choices.The third chapter is to the divorce agreement "gift to children real estate" provisions of the qualitative re-understanding.The article of "gift to children’s house property" in the divorce agreement is deemed as a gift contract,a contract for the interest of a third party.Starting from the integrity of divorce agreement,the settlement agreement of altruistic divorce property takes into account the tripartite legal relationship between husband and wife,parents and children,which makes up for the deficiency of these theories and is more reasonable.The fourth chapter discusses the path choice of the law application of "gift to children’s house property".The settlement agreement of altruistic divorce property includes the following three layers of legal relationship:The first layer is the basic relationship between the promisor and the promisee.In the context of divorce agreement,this basic relationship is the relationship of divorce property settlement.The second layer is the performance relationship between the promisor and the third party.The third layer is the causal relationship between the acceptor and the third person.Giving a child a direct claim for performance does not violate the intention of the party concerned.There is a complicated compensation relationship between husband and wife in the settlement of divorce property.After the children have expressed their intention to accept the gift,they shall limit the couple’s right of revocation.In order to balance the interests of both parents and children,causes such as fraud,coercion,apparent unfairness and change of circumstances can be excluded from the performance of the divorce agreement.The possible innovations of this paper lies in the following aspects:From the perspective of topic selection,this paper is innovative and analyzes the application of law in 247 cases by empirical research.On this basis,the paper analyzes the causes of disputes on the application of law.Moreover,the author reunderstands the nature of the gift,and probes into the procedural problems and several exceptions in the application of law.It has great practical value.The shortcoming of this paper is that the 247 cases studied are all public judgment documents,but the judicial materials such as the records of the collegial panel,trial reports and evidence materials have not been obtained and analyzed.Therefore,the understanding of the original appearance and background of the case is not deep enough.At the same time,considering that the research topic of this paper has distinct local characteristics,and because of my limited foreign language ability,I cannot independently study first-hand foreign language materials.Therefore,the comparative study between national laws is insufficient.In the argumentation aspect,my argumentation ability still has the larger progress space.