On The Judicial Judgment Of The Promissory Gift In The Divorce Agreement

The current concept of marriage in China compared with profound changes have taken place in the last century, in the process of divorce of husband and wife, in order to conveniently and quickly to terminate the relationship, from "mud" for the purpose of marriage, most couples can choose divorce registration to civil administration branch, to sign a divorce settlement. Was simple to terminate the relationship as the core content of the divorce agreement, tend to additional terms, some of the other makes the divorce agreement content enriched, in addition to simply remove the personal relations, increase the content of property relationship, such as agreed in the divorce agreement the gift.In the judicial practice, because of the gift in the divorce agreement agreed dispute case more and more. Of the disputes, there is no direct law, all of the people's court for such disputes, the referee does not agree, similar cases exist at odds. The jurists around the nature of the gift and agree with the divorce agreement whether the donor shall enjoy the right of any cancellation has since the see. To this, this article to husband and wife in the marriage registration authority for divorce, the divorce agreement signed by the two parties in the contract of the gift to discuss research, adopt the method of combining empirical analysis and theoretical analysis, by analyzing practical cases, combined with the marriage, contracts,intellectual property rights, and procedural law theory, the article build a "gift" in the divorce agreement agreed dispute judicial decision rules.Apart from the introduction, the text is divided into five parts, about 20000 words.The first part of the problem is put forward. Introduce "wang mou and New York: ivy books donative contract dispute" case, lead to the "gift" in the divorce agreement agreed dispute question. By retrieving the Chinese net written judgment, collecting similar case, the case analysis table(see attachment 1), induces "gift" agree with the divorce agreement to the dispute of the four specific situations:(1) a party personal property, divorce agreement the gift of the other party;(2) one party personal property, divorce agreement gift a third person;(3) joint property of husband and wife, divorce agreement to a party's share of all the gift of the other party;(4) the joint property of husband and wife, divorce agreement the third person.The donor clauses in the second part of "divorce agreement" confused with donative contract. Through to the divorce agreement and definition of gift contract, carding about giftclauses in "divorce agreement" nature's point of view, analysis the practice will donative terms and condition of gift contract confusion. "Gift" agree with the divorce agreement the disputes "divorce agreement", includes a divorce agreement and donative contract or gift meaning express the views of the two parts of content.The third part of the applicable law. Discuss the "gift" in the divorce agreement agreed dispute is applicable "contract law" or "marriage law", the donor may exercise any cancellation right? Through to the relevant opinions to comb, and put forward four questions,tend to "contract law", this kind of dispute apply the donor shall enjoy the right of any cancellation.The fourth part program legal problems. Analysis of the "gift" in the divorce agreement agreed dispute procedure legal issues- the cause of action for the cognizance of chaos and the parties concerned. Judicial practice in the applicable tariff, cancellation rights disputes,contract dispute, marriage and family disputes, divorce property disputes, confirmed real right disputes, disputes and donative contract dispute. When it comes to the recipient as an interested third person, easy to cause the discomfort of the partiesThe fifth part the judicial decision rules. Build "gift" agree with the divorce agreement to the dispute of judicial decision rule: in addition to the common property of husband and wife,divorce agreement to a party's share of all the gift of the other party "case applicable rules of division of common property of husband and wife, the other three kinds of situations should be applicable donative contract rules, the donor shall enjoy the right of any cancellation.