Research On The Legal Issues Of The "Gift To Children" Clause In The Divorce Agreement

The divorce agreement signed by both parties to the divorce after reaching a divorce agreement is a manifestation of both parties’ willingness and autonomy.In practice,in addition to child support and debt settlement,the divorce agreement generally has the "gift to children" clause,which stipulates that the spouse’s individual or common property such as real estate belongs to the children to make up for the damage caused to the children.Physical and mental harm,and meet the needs of children’s follow-up life education.The Marriage and Family Chapter of my country’s Civil Code also has relevant provisions on divorce agreements,but the legal provisions are more principled and broad,and do not have strong judicial guiding significance.In judicial practice,there are many differences in the definition of the nature and validity of the "gift to children" clause in the divorce agreement,and the phenomenon of different judgments in the same case has repeatedly appeared.This article intends to proceed from cases in judicial practice,through statistical data and comparative analysis,to put forward the problems existing in my country’s judicial practice,further analyze the problems,reveal the root causes of the problems,and gradually analyze and argue to draw their own conclusions.In addition to the introduction and conclusion,this article is divided into the following four parts:The first part is the introduction of the "gift to children" clause in the divorce agreement.The author searches for the main content of the "gift to children" clause by conducting case searches on the non-litigation case website,further sorting out the areas where the case contradictions are prominent,limiting the main research object to real estate,and analyzing the realistic reasons why real estate has become the focus of dispute.Secondly,I sorted out relevant practical judgments and found that the nature of the terms was unclear,the legal basis was different,there were differences in the restriction of the "donor" revocation right,and the children’s right to perform the request was disputed.The author explained and explained the issues one by one.The second part is to analyze the nature of the "gift to children" clause in the divorce agreement.First of all,the author interprets the existing theories in academia from a theoretical perspective,analyzes the main theories and viewpoints one by one,and analyzes their rationality and shortcomings.Secondly,it focuses on theoretical argumentation from the perspective of a contract for the benefit of a third party,and further analyzes the application of law on the basis of a contract for the benefit of a third party,and responds to the problem of different legal basis in judicial practice.The exercise of the right of revocation of the parties to the divorce agreement and the right of the children to perform the request provide the theoretical foundation.The third part focuses on the issue of the revocation of the "gift to children" clause in the divorce agreement.The first is the issue of the right of arbitrary cancellation of the parties to the divorce agreement,which is discussed according to the different circumstances of the divorce registration time.The second is to discuss the exercise of the right of revocation when the validity of divorce and divorce agreement is flawed.When the divorce is defective,it will affect the identity behavior,and the identity conditions attached to the clause are not fulfilled;when the divorce division agreement has a valid flaw,it will affect the property behavior,causing the "gift to children" clause to be revoked.The fourth part discusses the issue of children’s right to fulfill their claims,and discusses the legal basis and restrictive conditions of children’s fulfillment of their claims on the basis of a contract for the benefit of the third party.When there is a conflict between the child’s right to perform the request and the person applying for enforcement,comprehensively consider the time when the creditor’s rights occurred,the actual possession of the house,etc.,and comprehensively measure the priority of the creditor’s right to apply for enforcement and the child’s right to perform the claim;on the issue of the creditor’s right to cancel,it is based on the debt The formation time is different,and the conditions for the exercise of the creditor’s right of cancellation are analyzed.