Research On The Arbitrarily Revocation Of The Gift Contract

China is a state of ceremonies,Chinese traditional society will give gifts to each other as a way of social interaction,the so-called “gifts of roses,hand a fragrance”,with the development of modern market economy,the exchange has occupied an important position in social life,but the gift is still people between the implementation of poverty alleviation and save danger,important way to respect the old and cherish the young,by gift charity is also conducive to the promotion of social morality.In recent years,the cases of the arbitrarily revocation of the gift contract have increased the amount of judicial practice and disputes often grant marriage and family property,inheritance of property disputes together,involved in Chinese Contract Law and Marriage Law,has high academic value and practical application value to explore.The academic circles of our country to grant people the right to revoke different opinions,some scholars believe that it can make up for the defects of consensual contract of the gift of injustice;but other scholars believe that the donor to revoke the right system is not perfect,it is necessary for the donor to revoke the permission to shrink.There are many shortcomings in the system of arbitrarily revocation of grant contract in China.This article adopts the idea of progressive,crash-then-law.At the beginning of the article,the system of the right to revoke the gift contract,and briefly talk about the influence of the gratuitous nature of the gift contract on the right of arbitrary revocation,and the related thoughts caused by the gratuitous.Then set up the right to revoke the national legislation,analysis of causes and countries to revoke the similarities and differences between the right system,also check not specified to revoke the historical causes and realistic factors of the national power system,and compare our gift contract to revoke the right of legislative mode,put forward to the gift contract to revoke the right questions and legislation advice.The consideration of the system of the right to cancel the gift contract.It introduces the legislative value basis of the right of revocation of the gift contract without compensation,and doubts the application of the right of revocation of the gift contract in the judicial practice through the gratuitous nature.As we all know,the modern contract law is based on paid contract,and the unpaid contract is an exception in the contract system.As a representative of the free contract,the donation contract is regarded as "grace contract" is a party to the other party without negative corresponding to the price of the obligations of the contract,the parties between donor and donee "inequality" based on the position,will lead to imbalance between the interests of both sides,thus giving the donor power of regret that is the right of revocation is more important.The author believes that the breach of contract does not lead to violation of freedom and justice.Its influence on the donation contract should show the real intention of the donor and ensure that the duty of the donor is no more than its original intention.The investigation of the system of arbitrarily revocation of the grant contract in various countries.After consulted a lot of countries and regions of the civil code,as the birthplace of the continental European countries and regions does not require arbitrary right of revocation system,set up the system of the right to revoke the mostly legal transplantation of countries and regions,including Japan,South Korea,the typical Taiwan area of our country,in the mainland of China;through comparative analysis of the the foreign law,to our legislative background as the basis,for the arbitrary right of revocation system and put forward some suggestions.The practical application of the right of arbitrarily revoking the gift contract in the judicial practice of our country.The author retrieved by poly law cases,with 272 cases as the research sample,the basic ideas and tendency of palygorskite judge,statistical analysis of donor exercise the right to cancel any reason to grant no reasonable legal liability for revocation of the premise that the donee interests need to analyze specific gift between people and the donee liability obligations,and put forward the right to revoke the gift contract system suggestion.The breach of the system of arbitrarily revocation of the grant contract in China.On the basis of summarizing the mainstream views of the academic circles,the author puts forward his own opinions and views.So the author suggests that,on the one hand,the cases of judicial practice reflects the right to revoke the gift system lead to the abuse of rights,strengthen the protection of the interests of the trust system of the donee is more important;on the other hand,the right of revocation and the "contract law" article 189 of the conflict,and to overlap with the poverty of the right of defense highlights the problem.This paper focuses on the above two aspects of academic focus,and puts forward reasonable proposals for the reconstruction of the right to cancel the contract of gift,from the legal and practical aspects of the two aspects of rationality analysis,and strive to improve our system of arbitrary revocation.