On The Revocation Of Gifts Between Husband And Wife

Family property disputes in modern society have become complex and diverse because they involve marriage,contract and property rights.This is especially true of actual property relationships between husband and wife.More and more couples are giving property to express their affection and maintain their marriage,but the controversy has continued.In our country,the legislation on the application of the law concerning gifts between husband and wife is still unclear.Article 32(hereinafter referred to as Article 32)of the "Judicial Interpretation on Marriage and Family(I)"(hereinafter referred to as "Judicial Interpretation(I)"),which came into effect on January 1,2021,stipulates that the real estate gifted between husband and wife shall not be changed before the rights are changed.This article is actually an extension of the provisions of the gift contract in the field of marriage and family.However,this one-size-fits-all model has been questioned by many scholars,and there have also been many cases of different judgments in practice.By searching and analyzing cases in recent years,we found the core problems of gift between husband and wife in judicial practice:First,the nature of gift between husband and wife is not clear,and this can easily be confused with concepts such as matrimonial property agreement and general gift.Second,there is no clear regulation on how the right of revocation applies to gifts between husband and wife.In order to improve the applicable rules of the right to revocation gift between husband and wife,the solution measures include the following aspects:Firstly,clarify the connotation of the gift between husband and wife and the type and scope of the gifted property.In distinguishing from similar concepts,the gift between husband and wife is different from the matrimonial property system agreement in six aspects:the requirement of intention,the requirement of form,the property range,the purpose,the degree of freedom,and the legal effect.Compared with ordinary gifts,although gifts between husband and wife have the general attributes of gifts,because they occur in marriage and family,they have the particularity of subject identity,and are also different from ordinary gifts.Regarding the characterization of gifts between husband and wife,there are current academic and legal disputes.Drawing on the German theory of "giving by marriage",it is clear that it is a special gift,and marriage is the basis of the gift.In terms of legal application,the provisions of Article 32 actually allow the right of revocation to be applied in the field of gifts between husband and wife.Therefore,this gift in our country are still subject to the regulation of the contract,but the specific application should be adjusted.Secondly,restrictions on the right of arbitrary revocation of gifts between husband and wife.Regarding the right of revocation,there are two viewpoints in academics: support and opposition.The thirty-second article is controversial because it lacks strict restrictions on the right of arbitrary revocation and ignores the protection of the rights and interests of thedonee.Therefore,considering the particularity of gifts between husband and wife,and the restrictions on the right of arbitrary revocation: First,gifts of the nature of moral obligation for the purpose of maintaining marriage and family cannot be revoked arbitrarily.Second,strict requirements are imposed on the formal requirements of gifts,specifically referring to the notarization of the gift of immovable property,and the use of written form for movable property.Third,on the basis of following the principle of autonomy of will,both parties are allowed to negotiate to waive the right of arbitrary revocation.Finally,improve the application of the statutory right of revocation in gifts between husband and wife.The statutory right of revocation is a right that cannot be waived through negotiation between the two parties.In the field of marriage and family,when the recipient of the gift seriously infringes upon the rights and interests of the giver,fails to perform its maintenance obligations to the giver,or fails to perform the contractual obligations agreed upon by both parties,the giver has the statutory right of revocation.