On Revocation Of The "Clause Of Property Gift" In The Divorce Agreement

Paragraph1of Article186in the Contract Law of the People’s Republic of China(hereinafter referred to as “the Contract”) provides that “prior to the transfer of rights to thegift property, the donor may revoke the gift”. Paragraph2thereof provides that “the previousparagraph does not apply to any gift contract the nature of which serves public interests orfulfills a moral obligation, such as disaster relief, poverty relief, etc., or any gift contractwhich has been notarized”. The legal clause provides that the donor may revoke the giftprior to the transfer of rights to the gift property otherwise notarized, or with the nature ofserving public interests or fulfilling a moral obligation. The legislation and the relevantjudicial interpretations have not yet made the clear provisions on whether the clause that thecouple stipulates to donate the joint property to the children in the divorce agreement can berevoked. The theoretical circle and the practical circle hold two different controversialopinions on whether the “clause of property gift” can be revoked, without the unifiedjudgments in the trial practice. This thesis takes the case a template, makes comparativeanalysis on whether the gift can be revoked or not, and researches and discusses the focuses indispute from the case, hoping to be conducive to the unity of the trail standards in thefollowing trial practice and the maintenance of the legitimate rights and interests of bothparties.In addition to introduction, this thesis consists of five parts: Part One introduces theinformation on the gift contract dispute case in which the plaintiff a junior Wang bringslitigation against the defendant another Wang and summarizes the focuses of the case. PartTwo summarizes the two controversial opinions on whether the gift can be revoked in thetheoretical circle and the practical circle and their respective theoretical basis around thefocuses in dispute. Part Three makes comparative analysis on the two controversial opinionson whether the gift can be revoked and proposes their one-sidedness of the two opinions.Secondly, the author makes analysis according to the existing theory and practice, focuses onthe analysis of the nature of the gift contract, the component thereof, the joint disposal of jointproperty by the joint owners as well as the relief subsequent to the revocation of the gift,namely, the breaching liability in the divorce agreement, and concludes that: both the husbandand the wife who stipulate that the clause of property gift that the joint property of the couple shall belong to the underage children is the declaration of will that both parties jointly donatethe joint property, the gift contract can be revoked since the children do not make thedeclaration of will of accepting the gift, and the donator can revoke the declaration of will ofrevoking the gift. And the author points out the exception in the revocation of gift, namely,the property which the joint property of the couple belongs to the underage children is takenas the alimony to convert the property gift, any party can not unilaterally revoke the giftbefore the gift property rights has not yet been transferred. Part Four combines theory withpractice, combines the facts of the case to make overall analysis, makes further research onthe relevant legal issues involved in the case, proposes that the gift stipulation on the jointproperty of the couple to the children shall be confirmed in the letter of mediation to maintainthe good faith and fair justice principle and also avoid the judicial lawsuit burden of theparties concerned, and makes researches on the possibility, practicability of theimplementation, the nature of the gift stipulation of joint property and the specific operationin the trial practice. Part Five returns to the case and summarizes the management of the case.