Study On The Effect Of The Gift Of The Outside Marriage Cohabitation

In November,2010,the second provision of the draft of "theInterpretation of the Supreme People’s Court on Several Issues concerning the Application of the Marriage Law of the People’s Republic of China(Ⅲ)" says:"A person who has a spouse lives together with others,agreeing property compensation for breaking the cohabitation relationship,if one side raise a request to pay the compensation or ask for return after paying the compensation,the people’s court shall not support;but if the legal marriage party claims sued the return of the compensationinfringing marital property rights,the people’s court shall accept and handle according to the specific conditions." This is the first provision on the relevant issues concerning legislation in our country for the wedding gift.But because of the provision is too general and simple,and can not solve the complex situation of cohabitation donation practice outside marriage,therefore this provision is deleted in the formal introduction of the final draft.In the absence of legal provisions to support the premise,how to identify the effect of marriage cohabitation gift validity.In theory,it is divided into five kinds of theories,namely,the effective theory,the motive force to distinguish effect,the partial effective theory,the invalid theory and the natural debt treatment.Effective said extramarital cohabitation and gift relationship differently,think outside the wedding gift is the "contract law" on the donation contract,as long as the gift for the gift of real meaning,extramarital cohabitation gift is effective to distinguish the effect that motivation;whether to grant the gift of effective motivation as judgment standard when the motive,violation of the principle of public order and good morals gift is invalid,when the motive with the public order and good customs is effective;some effective said that the joint property of husband and wife for one half by shares,if the extramarital cohabitation property gift relates to the common property of the couple,so that part of the property belonging to the gift as valid,the donor spouse belongs to the legal property of gift is invalid;invalid said advocate extramarital cohabitation donation in violation of the law and principle of public order and good morals should be disallowed The court shall not give any protection according to the natural obligation to deal with the gift of cohabitation as a natural obligation.Theorists determine whether the gift of marital cohabitation is effective and often only from the property law or whether the public order and good custom perspective isolated view of the problem,there is no authoritative conclusion,can not provide a strong basis for the judicial practice.In the face of the vacuum of law,judges often make decisions based on their own experience when hearing these cases,resulting in the application of law in the judicial practice is not uniform.In this paper,the author uses empirical analysis,comparative analysis of the new perspective of the new perspective,to re-examine the issue of the effect of marital cohabitation gift.In addition to the introduction and conclusion,this paper is divided into five parts.The first part introduces the basis of "Gan Jiaren v.Lu Xiaoyan couples to return the housing dispute case",sorting lists from 2001 to 2015,the court finds extramarital cohabitation case gift effect,summed up the case of controversial points,that is the focus of study-extramarital cohabitation donation effectiveness,at the same time of marriage the gift of cohabitation are summarized,including the concept of community engagement cohabitation and the concept of non marital cohabitation,bigamy and other similar concepts,clear extramarital cohabitation is not the same as that in life people non marital cohabitation or bigamy,cohabitation and induction in extramarital grant type foundation points out that the nature of extramarital cohabitation gift is the property related to identity,which is the foundation of this article;the second part is about extramarital cohabitation donation theory validity,including Say,to distinguish between motivation effect effect,effective,invalid said said,and the theory analysis,analysis of its deficiencies;the third part is the summary of Germany,France and Taiwan region of China’s marital cohabitation donation judicial practice cognizance,the validity of judgment,shall examine the donator motivation;the fourth part is the core part of this paper,the author through the extraterritorial experience,to avoid the shortcomings of existing theories,the methods and principles of extramarital cohabitation donation legal recognition and put forward its own views,the extramarital cohabitation donation according to the nature of property is divided into three different types,each type of extramarital cohabitation donation the determination of the validity according to different criteria,the distribution principle and on the basis of the burden of proof;the fifth part of extramarital cohabitation after confirming the validity of the gift The extramarital cohabitation donation and invalid extramarital cohabitation donation related property to discuss how to deal with,and focuses on the handling of invalid extramarital cohabitation gift property issues is the core method of payment for illegal reasons and puts forward the system of great value for gift property,common property of husband and wife’s extramarital cohabitation donation into marriage "law interpretation(three)" fourth paragraph first,protection of the donor spouse’s legitimate property rights by dividing marital property.