Research On Children’s Right Of Claim For Gifting Their Property In The Divorce Agreement

For children who are not signed in the divorce agreement,does the parent have any relevant claim right for the gift of their parents in the divorce agreement? If so,what claims exist? What is the basis of its claim? In order to get rid of the marital relationship as soon as possible,and escape the shackles of the marital relationship,compared with the time-consuming and laborious process of divorce,many couples usually choose to agree to a divorce,and include matters such as child support,property and debt processing into the divorce agreement.As an important part of the divorce agreement,property disposal is usually the key to whether the divorce agreement can be reached.As the continuation of the blood relationship and emotional bondage of the husband and wife,the children often become the media and the balance of interests between the two parties.For many complicated reasons,parents usually agree to give the property to the children in the divorce agreement.However,the performance of the gift clause may sometimes be contrary to expectations.After the marriage between the two parents is terminated,one of the parents will claim that the gift to the child is revoked on the ground that the rights are not actually transferred.When the lawsuit is filed,the parents defend for various reasons,or if the parents sold or mortgaged the property given to the child in the divorce agreement,so that the parent cannot fulfill the gift to the child,the child demands compensation for the loss.Regarding the difficulties encountered in the implementation of the provisions on the gift of children’s property in the above divorce agreement,because the current Chinese marriage law and related judicial interpretations do not provide for the gift of children’s property in the divorce agreement,so there is much controversy over whether the children have relevant claims on the gift clause.The main points of dispute are: first,whether the gift clause can apply the relevant provisions of the gift contract in the Contract Law,and whether it needs special consideration because of its appearance in divorce agreements.Second,when the parents are neglected to perform,can the child exercise the right to claim the property,thereby requesting the parents to perform,and whether the parents can defend by revoking the gift clause.Third,can children request parental compensation when gifts cannot be fulfilled? During the court’s decision,the judge’s understanding of the legal basis of the children’s property claim rights in the gift clauses led to different judgement results,some even if the judgement results were the same,but the judgement basis was also Very different.This article will combine the relevant cases in judicial practice to clarify the legal nature of the legal basis of the child’s property claim rights in the gift clause,so as to provide legal support for the child’s right to request,and hope that the child will encounter the request of the gift clause Difficulties help.In addition to the introduction and conclusion,this article is divided into four parts.The first part is the characterization of the gift of children’s property in the divorce agreement.This section first discusses that a divorce agreement is a composite agreement,including formation act of dissolution marriage relationship and collateral act of the division of property.Secondly,it is clear that such gifts in the divorce agreement are special,and it is necessary to distinguish whether they are arrangements made by parents in the form of "gift" for maintenance obligations,or they are pure gifts.It is based on the dissolution of the marriage status relationship,and has a special agreement of property attributes and personal attributes.Finally,it is demonstrated that the pure gift terms in the divorce agreement should be adjusted by my country’s "Contract Law".It is considered that the gift of parents to their children in the divorce agreement is an agreement on “relationship of status”.When there are no provisions in the marriage law and related judicial interpretations,the relevant provisions of the Contract Law may be applied or referred to.The second part analyzes the legal basis of the right to request the child’s property clause in the divorce agreement for the child’s property right.First of all,it introduces and understands the academic circles’ understanding of the basis of children’s claim rights in the law of children’s property claim rights and gives explanations.Secondly,it analyzes the differences in judicial practice of the basis of children’s request rights in the gift clause of children’s property law.Finally,the legal basis of the children’s property claims in the gift clause was revisited from a different perspective from never-children and adult children.When it is considered that parents make arrangements for the maintenance obligations of minor children by means of "gift",at this time the parents perform a legal obligation.And when the gift clause is pure gift,it should be a gift of moral obligation.The third part is about the exercise and obstruction of children’s property right.When parents fulfill the obligation to support minor children by means of "gift",the child can exercise the right to request the "gift" clause in accordance with Article 21,paragraph 2 and 37 of the Marriage Law Parents fulfill the gift terms.When the gift clause is a pure gift,the child can exercise the right to claim the gifted property according to Article 188 or Article 187 of the Contract Law according to whether the gifted property is movable or immovable property,or request the parents to go through registration procedures or Deliver the gift property.However,when the child exercises the right to claim property,the parent may use arbitrary revocation rights,statutory right of revocation,and exemption from the gift obligation to defend,thereby hindering the realization of the child’s right to claim property.The fourth part is the right to claim damages from the child when the gift is not available.It is based on the gift clause in the divorce agreement as a pure gift.Firstly,the establishment of the right to claim damages from children when they cannot fulfill the gift is discussed.It is different from the right to claim for damages that cannot be performed in a general contract,mainly due to its non-reimbursable characteristics.Therefore,there is a need to blame the parents.Finally,the scope of damages that children can claim is demonstrated.In the divorce agreement,the parents agreed to donate the property to the children.When the donor’s parents could not perform,the child did not have actual losses.The damage suffered was a loss of gains.Therefore,the scope of compensation should be the performance benefits and The value of the gift at the time of the lawsuit was used as the compensation standard.