| Real estate between husband and wife to give the agreement is to point to husband and wife one party will give its all the specific real estate free to another party completely owned or shared with the other party.With the continuous accumulation of personal property,during the period of marital relationship between husband and wife,based on the consideration of the maintenance of marriage,there are often real estate agreement behaviors between each other,and the related disputes are increasingly frequent.However,due to the complex situation of the real estate giving agreement between husband and wife,there have been disputes in academic circles about the nature and legal application of the real estate giving agreement between husband and wife,and there are a lot of different judgments in the same case in judicial practice.Through the introduction of cases,this paper analyzes the relevant disputes in judicial practice and finds that the main reason for the confusion in the application of the law of the agreement on the granting of real estate between husband and wife in practice is that the courts at all levels have different recognition of the nature of the agreement on the granting of real estate between husband and wife and different standards on whether the granting of real estate can exercise the revocation.In view of the problems have different properties that,in this article,through analysis and comparison between husband and wife property agreed to after the legal nature of the relevant theory argues that although the marital property agreement with the identity of the special relationship between attributes,but this does not affect their normal the cognizance of the gift property,the marital property given the nature of the contract as ordinary gift is more appropriate.In terms of whether the giver can exercise the right of revocation,this paper holds that the era of civil code has come.Based on the fact that the property giving agreement between husband and wife is a kind of mixed behavior of identity and property,on the one hand,According to the Supreme People’s Court about apply the < law of the People’s Republic of China civil code > the interpretation of the marriage and family make up（a）the provisions of article 32（hereinafter referred to as the "civil code of marriage and family make up judicial interpretation（a））,the author believes that in the marital property for contract disputes for any cancellation right rules of gift has its legitimacy,on the other hand,In order to solve the problem that the application of this article is too rigid in practice,this paper proposes to properly restrict the donor’s arbitrary revocation right from two aspects: the way of exercise and the expansion of irrevocable scope,so as to balance the interests of both husband and wife in the property giving agreement.In addition to any applicable cancellation right,this paper argues that the court in the trial of marital property for contract disputes can also be based on " civil code " article 464,paragraph 2,with reference to applicable rules of the statutory right of revocation of the gift contract to protect the donor,but in reference to apply process,in view of the provisions of statutory cancellation right the contract is made up of a more general,And considering the marital property to the identity of the convention properties,this paper combined with the " civil code of marriage and family legislation of statutory right of revocation in marital property contract disputes in the specific applicable in a clear,mainly to " civil code " in article 1091 of this law in China is a major fault behavior can be corresponding legal marriage cancellation right to exercise the first case,That is to say,if the recipient of the property giving agreement between husband and wife has the major marital fault stipulated in article 1091 of the Civil Code,the donor can exercise its legal revocation right to request revocation of the property giving. |
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